Living part of the year as Florida snowbirds and part of the year elsewhere can create unique estate planning, probate, domicile, and property issues that are worth addressing before a crisis occurs.
Key Takeaways
- Living in two states does not automatically mean you have two legal domiciles, but determining your true domicile can be important.
- Owning real estate in another state can create additional probate considerations after death.
- Florida homestead laws can have significant consequences for married homeowners and families with minor children.
- A will created in another state does not necessarily mean your Florida property will avoid Florida probate.
- Beneficiary designations, joint ownership, trusts, and other planning tools should be coordinated with your overall estate plan.
- Snowbirds should review their estate plan when moving to Florida, purchasing Florida property, getting married or divorced, or making other significant life changes.
- An estate planning attorney can help coordinate a plan when your life and property span multiple states.
For many retirees, living in two states is part of the appeal of retirement. Maybe Florida is home during the winter, while another state is where family, friends, or longtime roots remain. Perhaps you spend several months living as Florida and the rest of the year at your longtime home up north.
It is a comfortable arrangement, but it can make estate planning more complicated.
When someone owns property in two states, spends significant time in both, or maintains financial and personal ties to both, questions can arise about domicile, probate, homestead, wills, trusts, and which state’s laws apply.
For Florida snowbirds, having an estate plan that accounts for both states can help prevent confusion for family members later.
Are You a Florida Resident or a Florida Domiciliary?
One of the first questions as Florida snowbirds should consider is not simply where they live, but where they are legally domiciled.
You can own homes in multiple states. You can spend substantial time in more than one state. But that does not necessarily mean you have two domiciles.
Domicile generally refers to the place you consider your permanent home and where you intend to return or remain. Florida’s probate statutes define domicile as a person’s usual place of dwelling and treat the term as synonymous with residence.
For a snowbird, determining domicile can become important when questions arise about which state’s laws govern particular aspects of an estate.
The important point is that simply spending six months in Florida and six months somewhere else does not, by itself, answer every legal question about residency or domicile.
Why Does Domicile Matter for Estate Planning?
Domicile can affect which state’s laws apply to important aspects of an estate.
Consider a retiree who spends six months in Tampa and six months in Pennsylvania. They own a Florida condominium, a Pennsylvania home, investment accounts, and personal property in both states.
If their estate plan simply says, “I live in Florida,” that may not answer every legal question.
Their attorney may need to consider:
- Where the person is domiciled
- Where their real estate is located
- Which state issued their estate planning documents
- How property is titled
- Whether assets have beneficiary designations
- Whether a trust is involved
- Whether probate will be necessary
Florida law specifically provides that the validity and effect of a disposition of real property located in Florida is determined by Florida law.
The more ties a person has to multiple states, the more important coordination becomes.
What Happens to Your Florida Home When You Die?
Real estate deserves special attention because the law of the state where the property is located can affect how that property is handled.
A snowbird who lives primarily in another state but owns a Florida vacation home may therefore have Florida probate considerations after death.
Florida law provides for ancillary administration involving certain Florida assets owned by a nonresident who dies. The Florida Probate Code specifically addresses assets of nondomiciliaries and the disposition of Florida real property.
In practical terms, a person could potentially have an estate proceeding in their home state and another proceeding involving Florida property.
That is one reason snowbirds should not assume that having a will from their home state automatically takes care of their Florida property.
Can Owning a Florida Vacation Home Create a Second Probate?
Yes, it can. Imagine a couple who permanently lives in Ohio but owns a condominium in Sarasota. If one spouse dies while the property is still titled solely in that spouse’s name, the Florida property may require separate administration depending on the circumstances.
This is commonly referred to as ancillary probate or ancillary administration.
There are planning strategies that may reduce or avoid the need for a separate probate proceeding, depending on the property, ownership structure, and person’s overall estate plan.
Those strategies might include appropriate use of a trust, joint ownership, or other methods of transferring property.
However, there is no single solution that works for every snowbird.
Your Out-of-State Will Does Not Automatically Solve Everything
A common misconception is that a will prepared in another state is useless in Florida. That is not necessarily true.
Florida has procedures addressing wills and property belonging to nonresident decedents. Florida law also specifically provides that the validity and effect of a disposition of Florida real property is determined by Florida law.
But “my will is valid” and “my estate plan is coordinated” are two different things.
A will might be legally recognized while still failing to accomplish the family’s larger goals efficiently.
The real question is whether your entire plan works together across state lines.
Florida Homestead Rules Can Be Especially Important
Florida’s homestead laws are one reason snowbirds should not treat their Florida home like just another piece of real estate.
Florida law places restrictions on how homestead property can be devised at death in certain circumstances. For example, Florida Statute §732.4015 generally provides that homestead cannot be devised if the owner is survived by a spouse or minor child, subject to the exceptions provided by law.
The rules can become particularly important for:
- Married couples
- Parents with minor children
- Blended families
- People who own Florida property through trusts
- People who recently moved to Florida
- People who want to leave their Florida home to someone other than a spouse or child
Florida’s homestead rules can produce results that are not obvious from simply reading a will. That is especially true when a family has multiple homes and children from different relationships.
What If You Have a Spouse and Children From a Previous Marriage?
Snowbirds often have family structures that developed over many years.
A person may have children from a previous marriage and a current spouse. They may own a Florida home that they purchased after retiring, along with a house in another state.
They may want their spouse to be able to live in the Florida home while ultimately leaving the property to their children.
That is not necessarily a simple “leave the house to my spouse, then the children” situation.
Florida’s homestead protections can affect what an owner is permitted to do with the property at death.
This is precisely the type of situation where personalized estate planning matters.
What About the Home in Your Other State?
The same planning issue works in reverse.
If you are domiciled in Florida but continue to own a home in another state, your estate may have to address that property under the law of the state where it is located.
This can create additional administrative work for your family after your death. It also makes property ownership and titling especially important.
An estate planning attorney may be able to structure ownership or use a trust or other planning technique to make the administration of multiple properties simpler.
Should Florida Snowbirds Put Their Homes in a Trust?
Sometimes, but not automatically.
A revocable living trust is one estate planning tool that can be useful for people who own property in multiple states. Properly structured and funded, a trust may help simplify the transfer and administration of certain assets after death.
But simply creating a trust does not accomplish much if the property that was supposed to be placed into the trust never actually gets transferred. That is an important distinction.
If a snowbird creates a trust in Florida but continues to hold the Florida property individually, the trust may not accomplish the intended probate planning for that property.
An attorney can review how the property is currently titled and determine whether changes make sense.
Do Not Forget Your Beneficiary Designations
Real estate is only part of the picture.
Snowbirds should also review beneficiary designations on:
- Retirement accounts
- Life insurance
- Bank accounts
- Investment accounts
- Transfer-on-death accounts
- Other financial assets that allow beneficiary designations
A will does not necessarily control assets that pass by contract or beneficiary designation.
This means an estate plan can contain one set of instructions while an old beneficiary designation points somewhere else.
For example, someone might update their will after a divorce but forget to update the beneficiary on a retirement account. That disconnect can create a very different result from what the person intended.
What If You Have Estate Planning Documents From Another State?
Do not automatically assume you need to throw them away and start over. Instead, have the documents reviewed.
Estate planning documents prepared in another state may still be useful, but Florida-specific issues can warrant additional planning, particularly if you have established Florida domicile or acquired significant Florida property.
An attorney can look at the existing documents and determine whether they remain appropriate.
Sometimes the answer is to update them. Sometimes a new Florida plan makes more sense. Sometimes the existing documents can be coordinated with additional Florida planning.
What Documents Should a Florida Snowbird Review?
A comprehensive review may include more than the will.
Consider reviewing:
- Will
- Revocable living trust, if applicable
- Durable power of attorney
- Healthcare surrogate designation
- Living will
- HIPAA authorization
- Beneficiary designations
- Deeds and property ownership
- Business ownership documents
- Prenuptial or postnuptial agreements
- Digital asset instructions
The goal is to make sure the pieces do not contradict one another.
An estate plan that was appropriate 15 years ago may not fit the life you are living today.
What About Your Personal Property?
Not everything that matters to a family is real estate or an investment account. Snowbirds may have personal belongings in both homes.
Furniture, jewelry, artwork, collectibles, family photographs, vehicles, and other sentimental possessions can all become sources of disagreement after someone dies.
A good estate plan can address important personal property and make your wishes clearer. It can also be helpful to discuss particularly meaningful belongings with family members before a death occurs.
A conversation cannot replace legally enforceable documents, but it can prevent some unpleasant surprises.
Moving to Florida Is a Good Time to Review Your Estate Plan
If you have recently moved to Florida, establishing your new home is probably taking most of your attention.
But it is also a good time to review your estate plan.
A move may change:
- Your domicile
- Your state-specific legal documents
- Your property ownership
- Your tax situation
- Your healthcare planning
- Your powers of attorney
- Your probate exposure
Even if you are not moving permanently, purchasing a Florida home or spending substantially more time here can be a good reason to have your plan reviewed.
What If You Spend Exactly Half the Year in Each State?
This is where assumptions can become dangerous.
Spending six months in Florida and six months somewhere else does not, by itself, determine your legal domicile.
The overall circumstances matter, including where you consider your permanent home and the connections you maintain with each state.
Florida law also contains specific provisions concerning domicile in the context of certain estate-related matters, which illustrates why the question can be more complicated than simply counting the number of days spent in each state.
If your residency is likely to be questioned, an estate planning attorney can help you understand how to document your intentions and identify potential issues before they become a problem.
A Florida Snowbird Estate Plan Should Reflect Your Whole Life
The goal is not to create one estate plan for Florida and another for your other state. Ideally, your planning should account for the fact that your life crosses state lines.
That means looking at where you live, where you own property, how your assets are titled, who your beneficiaries are, and what you want to happen if you become incapacitated or die.
For many Florida snowbirds, a little planning now can save their families from sorting through multiple sets of laws, properties, and court procedures later.
When Should a Snowbird Talk to an Estate Planning Attorney?
Consider scheduling an estate planning review if you:
- Recently moved to Florida
- Purchased a Florida home or condominium
- Still own a home in another state
- Spend significant time in two states
- Have children from a previous marriage
- Recently married or divorced
- Created your will many years ago
- Have a trust that has never been reviewed
- Are unsure where you are legally domiciled
- Have not reviewed beneficiary designations recently
You do not have to be wealthy to benefit from coordinated estate planning.
For many Florida snowbirds, the issue is simply making sure the plan matches the life they actually live.
Frequently Asked Questions
Do Florida snowbirds need a different estate plan?
Not necessarily. However, people who live in or maintain significant connections to two states should have their estate plan reviewed to make sure it accounts for property, domicile, and laws that may apply in both states.
If I live in another state but own a Florida home, will my family have to go through Florida probate?
Potentially. A nonresident who dies owning certain Florida assets may be subject to ancillary administration in Florida. The specific requirements depend on how the property is owned and the circumstances of the estate. Florida law specifically addresses assets of nondomiciliaries and Florida real property.
Does my out-of-state will work in Florida?
It may. Florida law addresses the disposition of Florida real property owned by nonresidents, but having a valid out-of-state will does not necessarily mean your estate plan is optimized for Florida property or Florida law.
Can I avoid probate on my Florida vacation home?
Possibly, depending on how the property is owned and the overall estate plan. Trusts, joint ownership, and other planning methods may be appropriate in some circumstances. An attorney can evaluate the specific property and ownership structure.
Does Florida homestead affect estate planning?
Yes. Florida homestead laws can restrict how certain homestead property may be devised at death, particularly when a surviving spouse or minor child is involved.
What does domicile mean for a Florida snowbird?
Domicile generally refers to the person’s usual place of dwelling or permanent home. Someone can maintain residences in multiple states, but determining domicile may require looking at the person’s overall circumstances rather than simply counting days spent in each state.
Should I update my estate plan after moving to Florida?
It is a good idea to have your plan reviewed after a move, particularly if you have established Florida as your domicile or purchased Florida real estate. Your attorney can determine whether your existing documents remain appropriate.
Do I need a trust if I own property in two states?
Not necessarily. A trust may be useful in some circumstances, but whether it makes sense depends on your assets, family situation, goals, and how your property is titled. A trust should be considered as part of an overall estate plan rather than as a one-size-fits-all solution.
This is intended to be general guidance. If you have questions or concerns about estate planning or probate, we recommend you consult with Attorney O’ Connor.
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Attorney O’Connor has extensive experience with estate planning and probate law and is available to serve you in Tampa Bay, Brandon, Kissimmee, Lakeland, Plant City, Hillsborough County, Pinellas County, Polk County and Osceola County.
