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Is Florida a Community Property State? (2026)

Updated October 8, 2026. Quick answer: Not by default. Florida is a common law state, but the Florida Community Property Trust Act lets spouses opt in: under section 736.1505 spouses “may classify any or all of their property as community property” by placing it in a qualifying trust. The IRS lists nine community property states.

Florida community property at a glance

ItemWhat the documents say
RegimeCommon law; opt-in community property trust
At divorceProperty in a community property trust: one-half of the trust assets to each spouse (section 736.1508). Outside a trust: equitable distribution (section 61.075)
At a spouse’s deathProperty in a community property trust: one-half is the survivor’s share (section 736.1507). Outside a trust: elective share of 30 percent of the elective estate (section 732.2065)
Federal basis at the first deathOpen: Fla. Stat. 736.1511 treats a community property trust as one established under state community property laws for 26 U.S.C. 1014(b)(6), but IRS Publication 555 does not address the federal treatment of the election in this state’s trust
SourceFlorida Legislature (flsenate.gov, 2026 Florida Statutes); IRS Publications 551 and 555; 26 U.S.C. 1014

What the Florida statutes say

The Act is Part XI of Chapter 736, Florida Statutes, sections 736.1501 to 736.1512, in the 2026 Florida Statutes on the Legislature’s site. Under section 736.1505, spouses can classify property as community property even when domicile does not line up: the statute applies “Whether both, one, or neither is domiciled in the state”. The definitions section applies the Act to trusts “created, amended, restated, or modified on or after July 1, 2021”.

How the opt-in trust works in Florida

  • The trust “Expressly declares that the trust is a community property trust” (section 736.1503(1)).
  • The trust “Has at least one trustee who is a qualified trustee” (section 736.1503(2)); a qualified trustee includes “A natural person who is a resident of the state” (section 736.1502).
  • The trust “Is signed by both settlor spouses” and opens with a statutory notice (section 736.1503(3) and (4)).

At divorce in Florida

For property in a community property trust, section 736.1508 provides that on dissolution the trust “shall terminate and the trustee shall distribute one-half of the trust assets”, and section 61.075 does not apply to those assets. Property outside a trust is divided under section 61.075, which “must begin with the premise that the distribution should be equal”.

At a spouse’s death in Florida

For property in a trust, section 736.1507 provides that one-half of the value “reflects the share of the surviving spouse” and is not subject to the decedent’s will; the other half is the decedent’s share. For property outside a trust, the survivor has an elective share of the elective estate under section 732.201, which section 732.2065 sets “equal to 30 percent of the elective estate”.

What it does to basis when the first spouse dies

Fla. Stat. 736.1511 provides that, for purposes of 26 U.S.C. 1014(b)(6), a community property trust is considered a trust established under the community property laws of the state. The documents read do not settle the federal result beyond that statute. IRS Publication 555, the IRS’s guide to community property, says it “doesn’t address the federal tax treatment of income or property” subject to the community property election under the laws of Alaska, Tennessee and South Dakota. The statute that gives community property a new basis for the survivor, 26 U.S.C. 1014(b)(6), refers to “property which represents the surviving spouse’s one-half share of community property” held under the community property laws of a State.

What the state statute fixes is the split. As a computed illustration, if a Florida couple placed $400,000 of shares in a qualifying trust and the trust held it at a spouse’s death, the survivor’s one-half share is half of that value, or $200,000. Whether the whole $400,000 gets a new basis at that death is the open federal question; CMG’s page on community property trusts and the IRS covers it. On the same facts, a common law qualified joint interest would give the survivor a basis equal to the total of $200,000 plus $50,000, which is $250,000.

What the documents do not say

  • The definitions (736.1502) show an amendment by chapter 2025-159, and the archived text does not give its effective date or what it changed.
  • Beyond Fla. Stat. 736.1511 and the IRS note below, the documents read do not say how the federal tax rules treat property in a Florida community property trust at the first spouse’s death.
  • IRS Publication 555 names Alaska, Tennessee and South Dakota in its note on the election and does not name Florida.

Common mistakes

  • Assuming a Florida couple’s joint account is community property. Only property placed in a trust that meets the Act’s requirements (736.1503) is.
  • Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.

Related: community property states by state, community property trusts and the IRS, Florida retirement taxes, and Florida probate cost.

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Sources

Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.

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