The Florida Senate

689.225  Statutory rule against perpetuities.--

(1)  SHORT TITLE.--This section may be cited as the "Florida Uniform Statutory Rule Against Perpetuities."

(2)  STATEMENT OF THE RULE.--

(a)  A nonvested property interest in real or personal property is invalid unless:

1.  When the interest is created, it is certain to vest or terminate no later than 21 years after the death of an individual then alive; or

2.  The interest either vests or terminates within 90 years after its creation.

(b)  A general power of appointment not presently exercisable because of a condition precedent is invalid unless:

1.  When the power is created, the condition precedent is certain to be satisfied or become impossible to satisfy no later than 21 years after the death of an individual then alive; or

2.  The condition precedent either is satisfied or becomes impossible to satisfy within 90 years after its creation.

(c)  A nongeneral power of appointment or a general testamentary power of appointment is invalid unless:

1.  When the power is created, it is certain to be irrevocably exercised or otherwise to terminate no later than 21 years after the death of an individual then alive; or

2.  The power is irrevocably exercised or otherwise terminates within 90 years after its creation.

(d)  In determining whether a nonvested property interest or a power of appointment is valid under subparagraph (a)1., subparagraph (b)1., or subparagraph (c)1., the possibility that a child will be born to an individual after the individual's death is disregarded.

(e)  If, in measuring a period from the creation of a trust or other property arrangement, language in a governing instrument (i) seeks to disallow the vesting or termination of any interest or trust beyond, (ii) seeks to postpone the vesting or termination of any interest or trust until, or (iii) seeks to operate in effect in any similar fashion upon, the later of:

1.  The expiration of a period of time not exceeding 21 years after the death of a specified life or the survivor of specified lives, or upon the death of a specified life or the death of the survivor of specified lives in being at the creation of the trust or other property arrangement, or

2.  The expiration of a period of time that exceeds or might exceed 21 years after the death of the survivor of lives in being at the creation of the trust or other property arrangement,

that language is inoperative to the extent it produces a period of time that exceeds 21 years after the death of the survivor of the specified lives.

(f)  As to any trust created after December 31, 2000, this section shall apply to a nonvested property interest or power of appointment contained in a trust by substituting 360 years in place of "90 years" in each place such term appears in this section unless the terms of the trust require that all beneficial interests in the trust vest or terminate within a lesser period.

(3)  WHEN NONVESTED PROPERTY INTEREST OR POWER OF APPOINTMENT CREATED.--

(a)  Except as provided in paragraphs (b), (d), and (e) of this subsection and in paragraph (a) of subsection (6), the time of creation of a nonvested property interest or a power of appointment is determined under general principles of property law.

(b)  For purposes of this section, if there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial owner of a nonvested property interest or a property interest subject to a power of appointment described in paragraph (b) or paragraph (c) of subsection (2), the nonvested property interest or power of appointment is created when the power to become the unqualified beneficial owner terminates.

(c)  For purposes of this section, a joint power with respect to community property or to marital property under the Uniform Marital Property Act held by individuals married to each other is a power exercisable by one person alone.

(d)  For purposes of this section, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other existing property arrangement is created when the nonvested property interest or power of appointment in the original contribution was created.

(e)  For purposes of this section, if a nongeneral or testamentary power of appointment is exercised to create another nongeneral or testamentary power of appointment, every nonvested property interest or power of appointment created through the exercise of such other nongeneral or testamentary power is considered to have been created at the time of the creation of the first nongeneral or testamentary power of appointment.

(4)  REFORMATION.--Upon the petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the 90 years allowed by subparagraph (2)(a)2., subparagraph (2)(b)2., or subparagraph (2)(c)2. if:

(a)  A nonvested property interest or a power of appointment becomes invalid under subsection (2);

(b)  A class gift is not but might become invalid under subsection (2) and the time has arrived when the share of any class member is to take effect in possession or enjoyment; or

(c)  A nonvested property interest that is not validated by subparagraph (2)(a)1. can vest but not within 90 years after its creation.

(5)  EXCLUSIONS FROM STATUTORY RULE AGAINST PERPETUITIES.--Subsection (2) does not apply to:

(a)  A nonvested property interest or a power of appointment arising out of a nondonative transfer, except a nonvested property interest or a power of appointment arising out of:

1.  A premarital or postmarital agreement;

2.  A separation or divorce settlement;

3.  A spouse's election;

4.  A similar arrangement arising out of a prospective, existing, or previous marital relationship between the parties;

5.  A contract to make or not to revoke a will or trust;

6.  A contract to exercise or not to exercise a power of appointment;

7.  A transfer in satisfaction of a duty of support; or

8.  A reciprocal transfer;

(b)  A fiduciary's power relating to the administration or management of assets, including the power of a fiduciary to sell, lease, or mortgage property, and the power of a fiduciary to determine principal and income;

(c)  A power to appoint a fiduciary;

(d)  A discretionary power of a trustee to distribute principal before termination of a trust to a beneficiary having an indefeasibly vested interest in the income and principal;

(e)  A nonvested property interest held by a charity, government, or governmental agency or subdivision, if the nonvested property interest is preceded by an interest held by another charity, government, or governmental agency or subdivision;

(f)  A nonvested property interest in, or a power of appointment with respect to, a trust or other property arrangement forming part of a pension, profit-sharing, stock bonus, health, disability, death benefit, income deferral, or other current or deferred benefit plan for one or more employees, independent contractors, or their beneficiaries or spouses, to which contributions are made for the purpose of distributing to or for the benefit of the participants, or their beneficiaries or spouses, the property, income, or principal in the trust or other property arrangement, except a nonvested property interest or a power of appointment that is created by an election of a participant or a beneficiary or spouse; or

(g)  A property interest, power of appointment, or arrangement that was not subject to the common-law rule against perpetuities or is excluded by another statute of this state.

(6)  APPLICATION.--

(a)  Except as extended by paragraph (c), this section applies to a nonvested property interest or a power of appointment that is created on or after October 1, 1988. For purposes of this subsection, a nonvested property interest or a power of appointment created by the exercise of a power of appointment is created when the power is irrevocably exercised or when a revocable exercise becomes irrevocable.

(b)  This section also applies to a power of appointment that was created before October 1, 1988, but only to the extent that it remains unexercised on October 1, 1988.

(c)  If a nonvested property interest or a power of appointment was created before October 1, 1988, and is determined in a judicial proceeding commenced on or after October 1, 1988, to violate this state's rule against perpetuities as that rule existed before October 1, 1988, a court, upon the petition of an interested person, may reform the disposition in the manner that most closely approximates the transferor's manifested plan of distribution and is within the limits of the rule against perpetuities applicable when the nonvested property interest or power of appointment was created.

(7)  RULE OF CONSTRUCTION.--With respect to any matter relating to the validity of an interest within the rule against perpetuities, unless a contrary intent appears, it shall be presumed that the transferor of the interest intended that the interest be valid. This section is the sole expression of any rule against perpetuities or remoteness in vesting in this state. No common-law rule against perpetuities or remoteness in vesting shall exist with respect to any interest or power regardless of whether such interest or power is governed by this section.

(8)  UNIFORMITY OF APPLICATION AND CONSTRUCTION.--This section shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this act among states enacting it.

History.--s. 1, ch. 88-40; s. 1, ch. 97-240; s. 1, ch. 2000-245.