Florida Senate - 2021                          SENATOR AMENDMENT
       Bill No. CS for CS for SB 1070
       
       
       
       
       
       
                                Ì215478KÎ215478                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AD/2R         .                                
             04/21/2021 10:55 AM       .                                
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       Senator Berman moved the following:
       
    1         Senate Amendment 
    2  
    3         Delete lines 862 - 1063
    4  and insert:
    5         (b)Entry of a decree of legal separation maintenance by a
    6  court of competent jurisdiction in another state that recognizes
    7  legal separation or maintenance under its laws.
    8         (5)“During marriage” means a period that begins at
    9  marriage and ends upon the dissolution of marriage or upon the
   10  death of a spouse.
   11         (6)“Qualified trustee” means either:
   12         (a)A natural person who is a resident of the state; or
   13         (b)A company authorized to act as a trustee in the state.
   14  
   15  A qualified trustee’s powers include, but are not limited to,
   16  maintaining records for the trust on an exclusive or a
   17  nonexclusive basis and preparing or arranging for the
   18  preparation of, on an exclusive or a nonexclusive basis, any
   19  income tax returns that must be filed by the trust.
   20         (7)“Settlor spouses” means a married couple who
   21  establishes a community property trust pursuant to this part.
   22         Section 31. Section 736.1503, Florida Statutes, is created
   23  to read:
   24         736.1503Requirements for community property trust.—An
   25  arrangement is a community property trust if one or both settlor
   26  spouses transfer property to a trust that:
   27         (1)Expressly declares that the trust is a community
   28  property trust within the meaning of this part.
   29         (2)Has at least one trustee who is a qualified trustee,
   30  provided that both spouses or either spouse also may be a
   31  trustee.
   32         (3)Is signed by both settlor spouses consistent with the
   33  formalities required for the execution of a trust under this
   34  chapter.
   35         (4)Contains substantially the following language in
   36  capital letters at the beginning of the community property trust
   37  agreement:
   38  
   39         THE CONSEQUENCES OF THIS COMMUNITY PROPERTY TRUST MAY
   40         BE VERY EXTENSIVE, INCLUDING, BUT NOT LIMITED TO, YOUR
   41         RIGHTS WITH RESPECT TO CREDITORS AND OTHER THIRD
   42         PARTIES, AND YOUR RIGHTS WITH YOUR SPOUSE DURING THE
   43         COURSE OF YOUR MARRIAGE, AT THE TIME OF A DIVORCE, AND
   44         UPON THE DEATH OF YOU OR YOUR SPOUSE. ACCORDINGLY,
   45         THIS TRUST AGREEMENT SHOULD BE SIGNED ONLY AFTER
   46         CAREFUL CONSIDERATION. IF YOU HAVE ANY QUESTIONS ABOUT
   47         THIS TRUST AGREEMENT, YOU SHOULD SEEK COMPETENT AND
   48         INDEPENDENT LEGAL ADVICE. ALTHOUGH NOT A REQUIREMENT,
   49         IT IS STRONGLY ADVISABLE THAT EACH SPOUSE OBTAIN THEIR
   50         OWN SEPARATE LEGAL COUNSEL PRIOR TO THE EXECUTION OF
   51         THIS TRUST.
   52  
   53         Section 32. Section 736.1504, Florida Statutes, is created
   54  to read:
   55         736.1504Agreement establishing community property trust;
   56  amendments and revocation.—
   57         (1)In the agreement establishing a community property
   58  trust, the settlor spouses may agree upon:
   59         (a)The rights and obligations in the property transferred
   60  to the trust, notwithstanding when and where the property is
   61  acquired or located.
   62         (b)The management and control of the property transferred
   63  into the trust.
   64         (c)The disposition of the property transferred to the
   65  trust on dissolution, death, or the occurrence or nonoccurrence
   66  of another event, subject to ss. 736.1507 and 736.1508.
   67         (d)Whether the trust is revocable or irrevocable.
   68         (e)Any other matter that affects the property transferred
   69  to the trust and does not violate public policy or general law
   70  imposing a criminal penalty, or result in the property not being
   71  treated as community property under the laws of a relevant
   72  jurisdiction.
   73         (2)In the event of the death of a settlor spouse, the
   74  surviving spouse may amend a community property trust regarding
   75  the disposition of that spouse’s one-half share of the community
   76  property, regardless of whether the agreement provides that the
   77  community property trust is irrevocable.
   78         (3)A community property trust may be amended or revoked by
   79  the settlor spouses unless the agreement itself specifically
   80  provides that the community property trust is irrevocable.
   81         (4)Notwithstanding any other provision of this code, the
   82  settlor spouses shall be deemed to be the only qualified
   83  beneficiaries of a community property trust until the death of
   84  one of the settlor spouses, regardless of whether the trust is
   85  revocable or irrevocable. After the death of one of the settlor
   86  spouses, the surviving spouse shall be deemed to be the only
   87  qualified beneficiary as to his or her share of the community
   88  property trust.
   89         Section 33. Section 736.1505, Florida Statutes, is created
   90  to read:
   91         736.1505Classification of property as community property;
   92  enforcement; duration; management and control; effect of
   93  distributions.—
   94         (1)Whether both, one, or neither is domiciled in the
   95  state, settlor spouses may classify any or all of their property
   96  as community property by transferring that property to a
   97  community property trust and providing in the trust that the
   98  property is community property pursuant to this part.
   99         (2)A community property trust is enforceable without
  100  consideration.
  101         (3)All property owned by a community property trust is
  102  community property under the laws of the state during the
  103  marriage of the settlor spouses.
  104         (4)The right to manage and control property that is
  105  transferred to a community property trust is determined by the
  106  terms of the trust agreement.
  107         (5)When property is distributed from a community property
  108  trust, the property shall no longer constitute community
  109  property within the meaning of this part, provided that
  110  community property as classified by a jurisdiction other than
  111  the state retains its character as community property to the
  112  extent otherwise provided by ss. 732.216-732.228.
  113         Section 34. Section 736.1506, Florida Statutes, is created
  114  to read:
  115         736.1506Satisfaction of obligations.—Except as provided in
  116  s. 4, Art. X of the State Constitution:
  117         (1)An obligation solely incurred by one settlor spouse
  118  before or during the marriage may be satisfied from that settlor
  119  spouse’s one-half share of a community property trust, unless
  120  otherwise provided in the community property trust agreement.
  121         (2)An obligation incurred by both spouses during the
  122  marriage may be satisfied from a community property trust of the
  123  settlor spouses.
  124         Section 35. Section 736.1507, Florida Statutes, is created
  125  to read:
  126         736.1507Death of a spouse.—Upon the death of a spouse,
  127  one-half of the aggregate value of the property held in a
  128  community property trust established by the settlor spouses
  129  reflects the share of the surviving spouse and is not subject to
  130  testamentary disposition by the decedent spouse or distribution
  131  under the laws of succession of the state. The other one-half of
  132  the value of that property reflects the share of the decedent
  133  spouse and is subject to testamentary disposition or
  134  distribution under the laws of succession of the state. Unless
  135  provided otherwise in the community property trust agreement,
  136  the trustee has the power to distribute assets of the trust in
  137  divided or undivided interests and to adjust resulting
  138  differences in valuation. A distribution in kind may be made on
  139  the basis of a non-pro rata division of the aggregate value of
  140  the trust assets, on the basis of a pro rata division of each
  141  individual asset, or by using both methods. The decedent’s
  142  spouse’s one-half share shall not be included in the elective
  143  estate.
  144         Section 36. Section 736.1508, Florida Statutes, is created
  145  to read:
  146         736.1508Dissolution of marriage.—
  147         (1)Upon the dissolution of the marriage of the settlor
  148  spouses, the community property trust shall terminate and the
  149  trustee shall distribute one-half of the trust assets to each
  150  spouse in accordance with subsection (3). For purposes of this
  151  act, s. 61.075 does not apply to the disposition of the assets
  152  and liabilities held in a community property trust.
  153         (2)The initiation of an action to dissolve the settlor
  154  spouses’ marriage does not automatically terminate the community
  155  property trust unless otherwise agreed to by the settlor spouses
  156  in writing or otherwise ordered by the court having jurisdiction
  157  over the dissolution proceedings between the settlor spouses.
  158  However, if an action to dissolve the settlor spouses’ marriage
  159  remains pending for 180 days, the trust automatically terminates
  160  and the trustee must distribute one-half of the trust assets to
  161  each spouse in accordance with subsection (3), unless any of the
  162  following apply:
  163         (a)A settlor spouse objects to the termination within 180
  164  days following the filing of the dissolution action. At which
  165  time, either party may request that the court having
  166  jurisdiction over the dissolution proceedings between the
  167  settlor spouses determine if good cause exists to terminate the
  168  community property trust during the pendency of the dissolution
  169  of marriage action.
  170         (b)The court having jurisdiction over the dissolution
  171  proceedings between the settlor spouses enters an order
  172  directing otherwise.
  173         (c)The settlor spouses otherwise agree, in writing, while
  174  the dissolution of marriage action is pending.
  175         (d)The community property trust agreement provides
  176  otherwise.
  177         (3)Unless provided otherwise in the community property
  178  trust agreement, the trustee has the power to distribute assets
  179  of the trust in divided or undivided interests and to adjust
  180  resulting differences in valuation. A distribution in kind may
  181  be made on the basis of a non-pro rata division of the aggregate
  182  value of the trust assets, on the basis of a pro rata division
  183  of each individual asset, or by using both methods. A trustee
  184  may not distribute real property or business interests in a
  185  manner that would leave the settlor spouses as co-owners of such
  186  assets post dissolution of the settlor spouses’ marriage or
  187  termination of the community property trust, unless otherwise
  188  agreed to by the settlor spouses in a separate written agreement
  189  executed during the dissolution of marriage action.
  190  Notwithstanding any other provision of this section, the
  191  community property trust agreement cannot be terminated, and the
  192  assets cannot be distributed, in a manner that could cause the
  193  trust assets to not be treated as community property.
  194         (4)The court having jurisdiction over the dissolution
  195  proceedings between the settlor spouses has personal and subject
  196  matter jurisdiction over the settlor spouses and the trustee of
  197  the community property trust for the purpose of effectuating the
  198  distribution of the community property trust assets consistent
  199  with the terms of the community property trust agreement, in a
  200  manner ensuring that the trust assets retain their community
  201  property character.
  202         Section 37. Section 736.1509, Florida Statutes, is created
  203  to read:
  204         736.1509Right of child to support.—A community property
  205  trust does not adversely affect the right of a child of the
  206  settlor spouses to support, pursuant to s. 61.30 or the
  207  applicable law of another jurisdiction, that either spouse would
  208  be required to give under the applicable laws of the settlor
  209  spouses’ state of domicile.
  210         Section 38. Section 736.151, Florida Statutes, is created
  211  to read:
  212         736.151Homestead property.—
  213         (1)Property that is transferred to or acquired subject to
  214  a community property trust may continue to qualify or may
  215  initially qualify as the settlor spouses’ homestead within the
  216  meaning of s. 4(a)(1), Art. X of the State Constitution and for
  217  all purposes of general law, provided that the property would
  218  qualify as the settlor spouses’ homestead if title was held in
  219  one or both of the settlor spouses’ individual names.
  220         (2)The settlor spouses shall be deemed to have beneficial
  221  title in equity to the homestead property held subject to a
  222  community property trust for all purposes, including for
  223  purposes of s. 196.031.
  224         Section 39. Section 736.1511, Florida Statutes, is created
  225  to read:
  226         736.1511Application of Internal Revenue Code; community
  227  property classified by another jurisdiction.—For purposes of the
  228  application of s. 1014(b)(6) of the Internal Revenue Code of
  229  1986, 26 U.S.C. s. 1014(b)(6), as of January 1, 2021, a
  230  community property trust is considered a trust established under
  231  the community property laws of the state. Community property, as
  232  classified by a jurisdiction other than this state, which is
  233  transferred to a community property trust retains its character
  234  as community property while in the trust. If the trust is
  235  revoked and property is transferred on revocation of the trust,
  236  the community property as classified by a jurisdiction other
  237  than the state retains its character as community property to
  238  the extent otherwise provided by ss. 732.216-732.228.
  239         Section 40. Section 736.1512, Florida Statutes, is created
  240  to read:
  241         736.1512Unenforceable trusts.—
  242         (1)A community property trust executed during marriage is
  243  not enforceable if the spouse against whom enforcement is sought
  244  proves that:
  245         (a)The trust was unconscionable when made;
  246         (b)The spouse against whom enforcement is sought did not
  247  execute the community property trust agreement voluntarily;
  248         (c)The community property trust agreement was the product
  249  of fraud, duress, coercion, or overreaching; or
  250         (d)Before execution of the community property trust
  251  agreement, the spouse against whom enforcement is sought:
  252         1.Was not given a fair and reasonable disclosure of the
  253  property and financial obligations of the other spouse.
  254         2.Did not voluntarily sign a written waiver expressly
  255  waiving right to disclosure of the property and financial
  256  obligations of the other spouse beyond the disclosure provided.
  257         3.Did not have notice of the property or financial
  258  obligations of the other spouse.
  259         (2)Whether a community property trust is unconscionable
  260  shall be determined by a court as a matter of law.
  261         (3)A community property trust may not be deemed
  262  unenforceable solely on the fact that the settlor spouses did
  263  not have separate legal representation when executing the
  264  community property trust agreement.