What it means
Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property, or both, of their minor child by written declaration. The declaration names the guardian to serve if the minor's last surviving parent becomes incapacitated or dies. It may also name an alternate to act if the designated guardian refuses to serve, renounces, dies, or becomes incapacitated after the last surviving parent's death.
The declaration must reasonably identify the declarants and the guardian and be signed in the presence of at least two attesting witnesses present at the same time. For each minor child it must give the full name as on the birth certificate or as court ordered, the date of birth, and the social security number, if any. The declarant must file it with the clerk of the court, who produces it when a petition for incapacity of the last surviving parent, or for appointment of a guardian on that parent's death, is filed.
Production creates a rebuttable presumption that the designated guardian is entitled to serve, though the court is not bound to appoint one found unqualified. The guardian assumes duties immediately on the last surviving parent's adjudicated incapacity or death and must petition for confirmation within 20 days. The clerk keeps declarations until a petition is filed or every named minor reaches majority.
- Both parents, if living, or the surviving parent may nominate a preneed guardian of the person or property, or both, of a minor child, and may name an alternate (§ 744.3046(1)).
- The declaration needs at least two attesting witnesses present at the same time and, for each child, the full name, date of birth, and social security number, if any (§ 744.3046(2)).
- Unlike a declaration under s. 744.3045, the declarant must file the declaration with the clerk of the court (§ 744.3046(3)).
- Production creates a rebuttable presumption that the designated guardian may serve; the court need not appoint an unqualified nominee (§ 744.3046(4)).
- The guardian assumes duties immediately on the last surviving parent's adjudicated incapacity or death, and petitions for confirmation within 20 days (§ 744.3046(5), (7)).
- The clerk keeps filed declarations until a petition is filed or all named minor children reach majority (§ 744.3046(8)).
Text of the statute (2026)
(1) Both parents, natural or adoptive, if living, or the surviving parent, may nominate a preneed guardian of the person or property or both of the parent’s minor child by making a written declaration that names such guardian to serve if the minor’s last surviving parent becomes incapacitated or dies. The declarant or declarants may also name an alternate to the guardian to act if the designated preneed guardian refuses to serve, renounces the appointment, dies, or becomes incapacitated after the death of the last surviving parent of the minor.
(2) The written declaration must reasonably identify the declarant or declarants and the designated preneed guardian and must be signed by the declarant or declarants in the presence of at least two attesting witnesses present at the same time. The written declaration must also provide the following information for each minor child named in such declaration: the full name as it appears on the birth certificate or as ordered by a court, date of birth, and social security number, if any. (3) The declarant must file the declaration with the clerk of the court. When a petition for incapacity of the last surviving parent or the appointment of a guardian upon the death of the last surviving parent is filed, the clerk shall produce the declaration.
(4) Production of the declaration in a proceeding to determine incapacity of the last surviving parent, or in a proceeding to appoint a guardian upon the death of the last surviving parent, constitutes a rebuttable presumption that the designated preneed guardian is entitled to serve as guardian. The court is not bound to appoint the designated preneed guardian if the designated preneed guardian is found to be unqualified to serve as guardian. (5) The preneed guardian shall assume the duties of guardian immediately upon an adjudication of incapacity of the last surviving parent or the death of the last surviving parent.
(7) Within 20 days after assumption of duties as guardian, a preneed guardian shall petition for confirmation of appointment. If the court finds the preneed guardian to be qualified to serve as guardian, appointment of the guardian must be confirmed. Each guardian so confirmed shall file an oath in accordance with s. 744.347 and shall file a bond, if the court requires a bond. Letters of guardianship must then be issued in the manner provided in s. 744.345.
(8) The clerk shall maintain all declarations filed pursuant to this section until: (a) A petition for incapacity of the last surviving parent is filed or petition for the appointment of a guardian upon the death of the last surviving parent is filed as provided in subsection (3); or (b) All minor children named in the declaration have reached the age of majority. The clerk may dispose of such written declaration in accordance with law.
Excerpts are the subsections the summary relies on. Read the full official text of § 744.3046.
History. s. 23, ch. 92-200.
How it applies
The declaration takes effect only when the last surviving parent becomes incapacitated or dies, so it does not displace the natural guardianship of a living parent under s. 744.301. It is produced in the proceeding to determine that parent's incapacity or to appoint a guardian on that parent's death.
Subsection (3) requires the declarant to file the declaration with the clerk of the court. The clerk's duty to maintain filed declarations is in subsection (8).
Where this shows up
Pages on this site where § 744.3046 does real work:
- When to update a Florida estate plan: marriage, divorce, a birth, a death, a move, new assets and incapacity, what Florida law changes automatically and which documents to review after each event
- Florida will checklist: who may make a will, signing and witness rules under section 732.502, the self-proving affidavit, and decisions on beneficiaries, personal representative, guardian and homestead
- Heath Ledger
- Philip Seymour Hoffman
Questions people ask
Sources
- Florida Statutes (2026), s. 744.3046, Florida Senate (Subsections (1) to (8): who may nominate, execution, mandatory filing, presumption, confirmation, and clerk retention. Quote: "may nominate a preneed guardian of the person or property or both of the parent’s minor child")
- Online Sunshine, Florida Statutes (2026), s. 744.3046 (Text, catchline, and History line checked against this page on 2026-10-17.)
- Florida Statutes (2026), s. 744.3045, Florida Senate (Comparison: adult preneed guardian declaration, where filing is optional.)
Last checked: October 17, 2026
Published by the Probate.Help editorial team.How these pages are written and checked.