Florida Transfer on Death Deed (TODD)
Florida enacted a statutory Transfer on Death Deed effective July 1, 2024 under F.S. 689.075. Learn how it works, what it costs, how to revoke it, and how it compares to a Lady Bird deed.
Florida now has a statutory Transfer on Death Deed — often called a TODD — that allows a property owner to name a beneficiary who will automatically receive the property when the owner dies, without going through probate. The law took effect July 1, 2024 under House Bill 885, codified at F.S. 689.075.
If you have been researching ways to avoid probate for your Florida home, this is a relatively new and straightforward tool worth understanding.
What Is a Transfer on Death Deed?
A Transfer on Death Deed is a deed you record during your lifetime that names a beneficiary — or multiple beneficiaries — to receive your property when you die. The deed has no legal effect while you are alive. You retain full ownership, can use the property however you wish, and can revoke or change the deed at any time without the beneficiary's consent.
At your death, title transfers automatically to the named beneficiary without probate. The beneficiary does not need to open an estate, hire an attorney, or wait for a court process. They simply record a death certificate and an affidavit confirming the transfer.
How It Differs from a Lady Bird Deed
Before HB 885 passed in 2024, Floridians who wanted to pass real estate outside of probate while retaining control during their lifetime typically used an enhanced life estate deed — widely known as a Lady Bird deed. Florida was one of the few states that recognized this deed form, and it remains a valid and commonly used estate planning tool.
The TODD and the Lady Bird deed accomplish similar goals — pass real estate outside probate while preserving the owner's control during life — but they are distinct legal instruments:
| Feature | Lady Bird Deed | Transfer on Death Deed (TODD) |
|---|---|---|
| Legal basis | Common law / custom | Statutory (F.S. 689.075) |
| Available since | Decades (no fixed date) | July 1, 2024 |
| Owner's control during life | Full, including sale and mortgage | Full, including sale and mortgage |
| Beneficiary's interest during life | None (fully revocable) | None (fully revocable) |
| Effect at death | Automatic title transfer | Automatic title transfer |
| Revocation | By recording new deed | By recording revocation or new TODD |
| Medicaid estate recovery | Generally not subject | Subject to Medicaid estate recovery in FL |
| Recording requirement | Yes | Yes, before death |
The key practical difference is Medicaid estate recovery. Under Florida's current rules, TODD property is included in the Medicaid estate for recovery purposes (see below). Lady Bird deeds, by contrast, have historically been treated differently. For people who may need Medicaid coverage for nursing home care, this distinction is significant.
How the TODD Works
Step 1: Prepare the Deed
The TODD must meet all the formal requirements for a deed in Florida, plus the statutory requirements specific to the TODD under F.S. 689.075:
- Must be in writing
- Must identify the real property by legal description
- Must name one or more beneficiaries (and can name alternate beneficiaries)
- Must be signed by the grantor (the property owner)
- Must be witnessed by two witnesses
- Must be notarized
The deed should state clearly on its face that it is a Transfer on Death Deed and that the transfer takes effect only at the grantor's death.
Step 2: Record Before Death
The TODD must be recorded in the public records of the county where the property is located before the grantor's death. A deed that is prepared but not recorded has no legal effect. This is a hard rule with no exceptions — if the grantor dies before recording, the deed is void and the property will pass through probate.
Recording costs vary by county but typically run $10 for the first page and $8.50 for each additional page.
Step 3: At Death
When the grantor dies, the beneficiary takes title automatically. To make the transfer clear in the public record, the beneficiary typically records:
- A certified copy of the grantor's death certificate
- An affidavit of survivorship confirming their identity as the named beneficiary
No court involvement is required. The beneficiary can then sell, mortgage, or transfer the property as they see fit.
Revoking or Changing a TODD
One of the most important features of the TODD is that the grantor retains complete power to revoke or change it at any time during their life. The beneficiary has no vested rights while the grantor is alive.
To revoke a TODD, the grantor can:
- Record a revocation instrument — a written document signed, witnessed, and notarized, explicitly revoking the TODD, and recorded before death
- Record a new TODD — a later TODD covering the same property automatically supersedes the earlier one
A revocation is not effective if it is only signed but not recorded. The key word is "recorded" — the document must be placed in the public record while the grantor is alive.
A grantor cannot revoke a TODD by will. Attempting to leave the property to someone different in a will does not override a recorded TODD.
What the TODD Does NOT Affect
Homestead Rights
Recording a TODD does not affect your homestead rights during your lifetime. You retain the property tax exemption and all creditor protections that come with homestead designation. The TODD simply designates who receives the property at death.
However, the TODD interacts with Florida's constitutional homestead restrictions. If you have a surviving spouse or minor child at death, Florida's homestead law may limit or override what the TODD can do. Specifically:
- If survived by a spouse and/or minor children, Florida homestead cannot be freely devised — the TODD may conflict with the constitutional rules, and the homestead may pass differently than the TODD instructs.
Before recording a TODD on your primary residence, confirm with an attorney how these rules interact given your family situation.
Creditors During Your Lifetime
While you are alive, your creditors can pursue the property as they normally could. The TODD does not make the property immune from creditors or judgments during your lifetime. After death, beneficiaries take the property subject to any liens that attached during the grantor's ownership.
Medicaid Estate Recovery: A Critical Warning
Florida's Medicaid Estate Recovery Program (MERP), administered by the Agency for Health Care Administration (AHCA) under F.S. 409.9101, can seek reimbursement from the estate of a deceased Medicaid recipient for the cost of certain Medicaid benefits — primarily nursing home and long-term care services provided to individuals age 55 or older.
Under Florida's current rules, TODD property is subject to Medicaid estate recovery. This means that if you received Medicaid benefits for long-term care and used a TODD to pass your home to your children, AHCA can still file a claim against that property for reimbursement of Medicaid costs.
This is different from how Lady Bird deeds are currently treated. The Lady Bird deed has historically been viewed as avoiding Medicaid estate recovery because the property does not pass through the probate estate — but the TODD, while also passing outside probate, is specifically included in Florida's Medicaid recovery reach under the current statutory framework.
If you are currently receiving Medicaid benefits for long-term care, or if there is a realistic possibility you may need Medicaid in the future, discuss this carefully with an elder law attorney before using a TODD instead of a Lady Bird deed.
Multiple Beneficiaries and Alternate Beneficiaries
A TODD can name more than one beneficiary. When multiple beneficiaries are named without further specification, they take the property as tenants in common in equal shares. The deed can specify different proportional shares or designate whether they take as joint tenants with right of survivorship.
The TODD can also name alternate beneficiaries — people who receive the property if the primary beneficiary dies before the grantor. For example, "to my daughter Jane, but if she does not survive me, to my son Michael." If no alternate is named and the primary beneficiary predeceases the grantor, the TODD is revoked as to that beneficiary's share, and that share passes through probate.
Carefully considering the beneficiary designation and naming alternates is an important part of drafting a TODD correctly.
Who Should Consider a TODD
A Transfer on Death Deed makes sense for property owners who:
- Own real estate in their own name and want it to pass to a specific person at death without probate
- Do not expect to need Medicaid coverage for long-term care (or have already addressed that issue with an elder law attorney)
- Want a simple, revocable way to plan for the transfer of a single property
- Have a clear idea of who they want to receive the property and want the flexibility to change their mind
A TODD is generally not the right tool for people who:
- Are concerned about Medicaid estate recovery (consider a Lady Bird deed or trust instead)
- Have complex family situations involving homestead restrictions (surviving spouse, minor children)
- Want to distribute property to multiple beneficiaries in a specific, managed way (a trust offers more control)
- Own investment property they plan to restructure for estate tax or income tax purposes
Comparing Your Options for Avoiding Probate on Real Estate
| Method | Probate Avoided | Control During Life | Medicaid Safe | Complexity |
|---|---|---|---|---|
| TODD (F.S. 689.075) | Yes | Full | No | Low |
| Lady Bird deed | Yes | Full | Generally yes | Low-Medium |
| Revocable living trust | Yes | Full | No | Medium-High |
| Joint ownership w/ survivorship | Yes | Shared | No | Low |
Frequently Asked Questions
Does the beneficiary need to consent to the TODD?
No. The beneficiary does not sign the deed and does not need to be notified that it exists. Their interest only arises at the grantor's death, and the grantor can revoke the deed without the beneficiary's knowledge.
What if the property has a mortgage?
Recording a TODD does not trigger a due-on-sale clause or affect the mortgage. The beneficiary takes the property subject to the existing mortgage and must either continue making payments or refinance.
Can a TODD be used for investment property, not just a home?
Yes. The TODD applies to any real property in Florida — residential, commercial, or investment. The Medicaid recovery issue is primarily relevant for primary residences.
How is the Lady Bird deed affected now that the TODD exists?
Lady Bird deeds remain valid and are still widely used. The TODD does not replace them. Both instruments are available tools; which is better depends on your specific situation. An estate planning attorney can help you choose.
Related Guides
- Florida Lady Bird Deed
- How to Avoid Probate in Florida
- Florida Homestead Exemption
- Florida Revocable Living Trust
- Florida Estate Planning Basics
Sources:
- "Florida Statutes Section 689.075 — Transfer on Death Deed," Florida Legislature, 2024, https://www.flsenate.gov/Laws/Statutes/2024/689.075
- "HB 885 — Transfer on Death Deeds," Florida Legislature, 2024, https://www.flsenate.gov/Session/Bill/2024/885
- "Florida Statutes Section 409.9101 — Medicaid Estate Recovery," Florida Legislature, 2024, https://www.flsenate.gov/Laws/Statutes/2024/409.9101
- "Consumer Pamphlet: Wills and Trusts," The Florida Bar, 2024, https://www.floridabar.org/
This guide provides general information about Florida Transfer on Death Deeds. Laws change; verify current requirements with a Florida real estate or estate planning attorney before executing a deed.