Florida Estate Planning for Parents of Minor Children

When both parents die without an estate plan, two things happen in Florida: a judge picks who raises your children, and a judge controls their inheritance until they turn 18. Both outcomes are avoidable with the right documents — but Florida's homestead and trust rules create traps that generic estate planning advice misses.

Naming a Guardian

Under Florida Statute 744.3046, you can nominate a preneed guardian of your minor child's person or property through a written declaration, including in your will. The court gives strong preference to the nomination, though it is not absolutely binding if the court finds the named guardian unfit.

What to decide:

• Guardian of the person (who raises your children day-to-day)
• Guardian of the property (who manages their inheritance) — this can be the same person or someone different

If you die without naming anyone, the court appoints a guardian from statutory preference: surviving parent first, then nearest relatives. If multiple relatives petition, the court holds a hearing — which can take months, during which your children may be placed in temporary care.

Practical considerations:

• Name an alternate guardian in case your first choice is unable or unwilling
• Talk to your chosen guardian before naming them — this is a significant commitment
• Consider geographic proximity, values alignment, and financial stability
• A couple can be named jointly, but name individuals as alternates (not "whoever they marry")

The Homestead Trap for Parents

This is the Florida-specific issue that catches the most families.

If you put your primary residence in a revocable living trust to avoid probate, and you die while survived by a spouse or minor child, Florida law treats the trust's distribution of the home as a devise. Under Article X, Section 4 of the Florida Constitution, a conflicting homestead devise may be void; a direct devise to your spouse is permitted when no minor children survive.

If the trust's instructions conflict with the restriction, the property descends by statute: the surviving spouse gets a life estate, and your children get the remainder interest. If both parents die, the home passes to the children, with the appropriate custodial or court-supervised property handling required for minors.

How to plan around it:

• Use a Lady Bird deed instead of a trust for the homestead — but understand it has the same constitutional restriction
• Structure the trust to work within the restriction (devise to the surviving spouse only)
• Use life insurance to provide equivalent value to beneficiaries who cannot receive the home
• Consult with a Florida estate planning attorney if your family structure is complex

Protecting Children's Inheritance

Minors may receive inherited property, but the property needs an appropriate custodial or court-supervised handling arrangement. A court-supervised guardianship of the property can involve annual accountings, court approval for expenditures, and attorney fees that reduce the inheritance.

Alternatives to guardianship:

• Testamentary trust: Your will creates a trust for each child's inheritance, naming a trustee (not the court) to manage the funds until the child reaches an age you specify (21, 25, 30 — your choice)
• UTMA custodianship: Florida's Uniform Transfers to Minors Act allows you to name a custodian to manage property for a minor until age 21. Simpler than a trust but less flexible
• 529 education accounts: Funds designated for education can be held in a 529 plan with a successor owner, avoiding both probate and guardianship

The Minimum Estate Plan for Florida Parents

At a minimum, Florida parents need:

1. A will naming a guardian and establishing a testamentary trust for each child's inheritance
2. A durable power of attorney with specifically initialed superpowers under the 2011 POA Act
3. A healthcare surrogate designation naming who makes medical decisions for you
4. A living will stating end-of-life preferences
5. Updated beneficiary designations on life insurance, retirement accounts, and bank accounts — naming a testamentary trust, custodian, or other appropriate arrangement rather than leaving the handling of a minor's inheritance unplanned

This combination ensures that someone you chose raises your children, someone you chose manages their money, and neither decision requires months of court proceedings.

The Florida Basic Estate Planning Kit includes guardianship nomination worksheets, a testamentary trust framework, and the homestead decision tree that identifies which planning tools work with minor children.

See more Florida guides →