Your will leaves the house to your trust. In Florida that clause can be void.

A revocable trust holds the assets and a short will sweeps anything left outside it into the trust at death. That shape is standard, it is sound, and on Florida homestead it can be void. Not weakened. Void, with the constitution supplying an outcome the documents never contemplated and the trustee losing every power the documents granted over that one asset.

The clause

The document is called a pour-over will and the operative sentence runs something like this: I devise the residue of my estate, including my residence, to the trustee of the John Smith Revocable Trust dated March 4, 2019, to be held and distributed under its terms.

The reason it exists is administrative. Assets inside the trust pass without probate. Assets outside it do not. The pour-over clause catches the strays, and on the rest of a Florida estate it does exactly that.

Why the house is different

Article X, Section 4(c) of the Florida Constitution says the homestead is not subject to devise if the owner is survived by a spouse or a minor child. There is one exception. It may be devised to the spouse, and only when there is no minor child.

Counsel outside Florida often reach for the trust, on the theory that a trust distribution is not a devise. Section 732.4015 closes that door in advance. Subsection (2)(a) defines owner to include the grantor of a trust described in section 733.707(3), evidenced by a written instrument in existence at the grantor's death, as if the interest held in trust were owned by the grantor. Subsection (2)(b) defines devise to include a disposition by trust of the portion of the trust estate that would be homestead if it were titled in the grantor's name.

So the trust is not the problem and it is not the solution. The statute looks through it and asks one question: where does the house end up, and does that destination satisfy Section 4(c)? A trust that leaves the homestead outright to a surviving spouse, with no minor child, satisfies it. A trust that leaves the spouse a life interest does not, and Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012), says so plainly. Whether a trust that gives the spouse the entire beneficial interest, with an unrestricted right of withdrawal or a general power of appointment, is the same as an outright devise is a question no controlling authority appears to answer, and treating it as settled in either direction would be a mistake.

Aronson

One note before the facts. The opinion that matters is the one substituted on rehearing and filed February 1, 2012, which withdrew an earlier opinion issued in October 2010. Commentary written between those two dates describes a version of the case that no longer exists.

Hillard Aronson conveyed a Key Biscayne condominium to his revocable trust in 1996. He and his wife Doreen were Massachusetts residents. They sold the Massachusetts house and moved into the condominium about a year before he died in November 2001. The trust gave Doreen a life interest in the unit with the remainder to his two sons from an earlier marriage. On its face that is a considered plan: the surviving spouse is housed, the children eventually inherit, probate is avoided.

The Third District Court of Appeal held the condominium was not subject to disposition through the trust. Then it described what happened instead, and this is the part worth reading slowly. At the moment of death, title passed by operation of section 732.401(1) to the wife for life and thereafter to the surviving sons per stirpes.

Notice that the destination barely moved. The wife took a life interest and the sons took the remainder, which is close to what the trust had tried to arrange. What was destroyed was the machinery. The homestead left the trust at the instant of death, so the trustees held no power or authority with respect to it, including no power to sell. The wife's trust-based claims went with it. She lost a reimbursement of $129,895 for paying off the mortgage with proceeds from the Massachusetts sale, an award of $136,519.67 for condominium repair and improvement expenses, and the annual principal requisitions the trust had provided. As life tenant she became responsible for carrying the property. The sons were the appellants and they won.

The lesson is not that a trust reroutes the house to strangers. It is narrower and more useful. The constitution can leave the beneficiaries roughly where the owner put them while stripping out the administration, the funding, the trustee's power to sell, and every provision that was supposed to make the arrangement workable for the person living there.

None of this is a Miami-Dade phenomenon. Section 4(c) is statewide constitutional law. The Aronsons were an out-of-state couple who had recently made a Florida condominium their home.

What replaces the clause

Section 732.401 supplies the substitute, and it is conditional. Where the decedent is survived by a spouse and one or more descendants, the spouse takes a life estate and the descendants in being at the time of the decedent's death take a vested remainder per stirpes. Otherwise the homestead descends in the same manner as intestate property, so a surviving spouse with no descendants takes it outright, and where there is no spouse it descends to the descendants per stirpes, with a surviving minor child taking as one of them and not to their exclusion. Subsection (5) provides that the section does not apply to property the decedent held as tenants by the entireties or in joint tenancy with right of survivorship.

The life estate is the outcome that causes litigation. Since October 2010 the statute has offered an alternative: the spouse may elect an undivided one-half interest as a tenant in common, with the other half to the descendants in being at the time of death. The election may be made by the spouse, or with court approval by an attorney-in-fact or a guardian of the property. It is not made by saying so. It requires filing a notice of election for recording in the official records of the county where the homestead sits, in substantially the statutory form, within six months after the death and during the spouse's lifetime, with a narrow extension where an attorney-in-fact or guardian petitions in time. Miss it and the life estate stands.

The two branches behave differently after that. Under the life estate, the survivor can convey the life estate but not the fee alone, the remainder holders own something they cannot occupy, and only together can they convey a fee simple. Under the one-half election the parties hold as tenants in common, and section 64.031 allows any one or more of several tenants in common to file for partition against the others.

Who this reaches

Four patterns show up repeatedly.

• A plan drafted in New York, New Jersey, Illinois or Ohio and carried to Florida with the client. The trust is fine. The homestead clause was written for a state that has no Section 4(c).
• A second marriage where the intent is a life interest for the spouse and the remainder to children from the first. That is the Aronson structure.
• A surviving minor child of the owner. There is no exception for one. The homestead cannot be devised to anyone, including the child's other parent and including a trust for the child's own benefit. Reading the constitutional term through the Probate Code's restatement in section 732.4015(1), the definition of child in section 731.201(3) excludes a person who is only a stepchild, a foster child, a grandchild or a more remote descendant.
• The snowbird who became a resident. The test is applied at death, on homestead status and the survivor list as they stand at that moment, and nothing arrives in the mail when a Florida house becomes the permanent residence.

A surviving adult child, standing alone, does not trigger any of this. Neither does a spouse when the devise runs to that spouse in fee and there is no minor child.

What the law does allow

Section 4(c) has two halves. The first restricts devise. The second requires a married owner to be joined by the spouse to alienate the homestead by mortgage, sale or gift during life. Any route that involves conveying the property while the owner is alive has to clear that joinder requirement. Routes that transfer nothing during life, such as a devise to the spouse or a waiver, do not touch it.

A devise to the surviving spouse, where there is no minor child, satisfies the first half on its own terms. That exception is in the constitutional text.

An inter vivos transfer can sit outside the devise restriction. Section 732.4017 provides that where the owner transfers an interest in homestead during life, including a transfer in trust, and does not retain a power to revoke or revest that interest, the transfer is not a devise. Two things travel with that. Giving up the power to revoke is giving up the power to revoke. And because this is a lifetime conveyance, a married owner still needs the spouse to join in it, so this is a way around the devise restriction and not a way around a spouse.

A spouse can waive homestead rights. Section 732.702 permits a waiver of homestead alongside the elective share, the intestate share, exempt property and other rights the section lists, by written contract before or after marriage. Where the agreement is signed after the marriage, each spouse must make a fair disclosure to the other of that spouse's own estate. No disclosure is required for one signed before the marriage. The two-witness requirement applies to agreements signed by Florida residents. An agreement executed by a nonresident of Florida is valid here if it was valid where it was executed, whether or not the person is a Florida resident at death, which is worth knowing for anyone who arrived with a prenuptial agreement from another state.

Property held as tenants by the entireties or in joint tenancy with right of survivorship is outside section 732.401 by its own terms. That addresses the descent question and says nothing about the tax exemption or creditor protection, which run on separate tracks.

What an attorney looks at

The analysis starts with whether the property is homestead at all. It has to be owned by a natural person, though the interest need not be fee simple and may be legal or equitable so long as it is possessory. The owner has to reside there or intend to make it the permanent residence of the owner or the owner's family. And it has to sit inside the size and contiguity limits of Article X, Section 4(a)(1). In Aronson the condominium was titled in the revocable trust and its homestead status was undisputed, so the court never had to decide the point.

Given that, three facts drive the rest, and a Florida-licensed attorney can run them quickly.

How the residence is titled. An individual deed, a deed to a revocable trust, and a deed held with a spouse as tenants by the entireties lead to three different places.

Who would survive the owner. A spouse, a minor child of the owner, adult children, or some combination.

What the documents say happens to the residence. A residuary clause pouring into a trust is the pattern described here. A specific devise of the homestead to a named spouse is a different pattern with a different answer.

The reason this keeps arriving in probate instead of in planning is not that the analysis is difficult. It is that the documents look correct, they were prepared by competent counsel, and nothing about them signals that they need a second reading.

Bottom line

The pour-over will is a good instrument. Florida homestead is a carve-out from it, written into the constitution and reinforced by statute, and a revocable trust does not move an owner outside it.

When the clause fails, it fails quietly, at the moment the person who could have corrected it is no longer available, on the asset the family is most attached to. It may leave the beneficiaries close to where they were placed. It will not leave the arrangement intact.

Written to the law as it stood in August 2026. Florida moves this material regularly, section 732.702 having last been amended in 2024 and section 732.401 in 2021. This is a description of how the law is written, not advice about anyone's situation. A Florida-licensed attorney is the person to read a specific deed and a specific set of documents against it.