Can my will override the operating agreement to give my business interest to my son? - Florida
The Short Answer
Usually, no—your will generally cannot “override” an LLC operating agreement’s transfer restrictions. In Florida, you can often leave the economic value of your LLC interest to your son, but the operating agreement may still control whether he becomes a member with voting/management rights.
What Florida Law Says
Florida’s LLC law separates (1) the right to receive distributions (the “transferable interest”) from (2) the right to participate in management as a member. Even if your will leaves your LLC interest to your son, the operating agreement may restrict transfers and may require consent or other conditions before a transferee can be admitted as a member.
The Statute
The primary law governing this issue is Fla. Stat. § 605.0502.
This statute establishes that a transfer of an LLC “transferable interest” generally does not give the transferee management rights, and that a transfer made in violation of an operating agreement’s transfer restriction can be ineffective against someone who has knowledge or notice of the restriction. See Fla. Stat. § 605.0502(1), (6).
Also, when an LLC member dies, the personal representative (or other legal representative) may be able to exercise certain rights to administer the estate, including any power the member had to allow a transferee to become a member—again, this often depends on the operating agreement’s terms. See Fla. Stat. § 605.0504.
For a deeper dive on what happens when the operating agreement doesn’t clearly address death, you may also want to read: If My Florida LLC Operating Agreement Is Silent, What Happens to My LLC Interest When I Die?
Why You Should Speak with an Attorney
While the statutes provide the general rule, applying it to your situation is rarely simple—especially when a will, an operating agreement, and family expectations collide. Legal outcomes often depend on:
- Strict Deadlines: Probate administration and business decisions often move on tight timelines, and delays can affect distributions, taxes, and business operations.
- Burden of Proof: You may need clear documentation showing what rights were transferred (economic rights vs. membership rights) and whether the operating agreement’s conditions were satisfied.
- Exceptions: Many operating agreements include buy-sell provisions, mandatory redemption on death, consent requirements, or valuation formulas that can change (or block) what a will tries to accomplish—especially because Florida law can treat a transfer that violates those restrictions as ineffective. See Fla. Stat. § 605.0502(6).
If your goal is specifically to have your son step into your shoes in the business (not just receive distributions), an attorney can review the operating agreement, coordinate your estate plan with the company documents, and help avoid a transfer that triggers disputes or gets rejected by the LLC.
Related reading: Can I Transfer a Deceased Owner’s LLC Membership Interest During Probate in Florida Without Losing Liability Protection?
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Disclaimer: This article provides general information under Florida law and does not create an attorney-client relationship. Laws change frequently. For legal advice specific to your situation, please consult with a licensed attorney.