Florida Senate - 2025 SB 262 By Senator Berman 26-00259B-25 2025262__ 1 A bill to be entitled 2 An act relating to trusts; amending s. 736.04117, 3 F.S.; revising the definition of the term “authorized 4 trustee”; revising how an authorized trustee may 5 exercise the power to invade principal as an 6 authorized trustee administering a trust; providing 7 that notice of such exercise by an authorized trustee 8 is not a trust disclosure document; providing that a 9 trust disclosure document may not commence a 10 limitations period unless such trust disclosure 11 document is provided after the effective date of the 12 exercise of the power to invade principal by an 13 authorized trustee; providing applicability; amending 14 s. 736.08125, F.S.; providing an exception with regard 15 to protection of successor trustees; creating s. 16 736.10085, F.S.; barring certain actions initiated by 17 specified parties against prior trustees; creating s. 18 736.1110, F.S.; providing that property devised to or 19 from a revocable trust which is devised, given, or 20 distributed to a donee by a settlor during the 21 settlor’s lifetime is treated as a satisfaction of 22 devise to that donee if certain criteria are met; 23 providing that property distributed or given to a 24 devisee during a settlor’s lifetime is to be valued at 25 the time the devisee came into possession or enjoyment 26 of the property, or at the time of the death of the 27 settlor, whichever occurs first; providing 28 applicability; amending s. 736.1502, F.S.; revising 29 the definitions of the terms “community property” and 30 “community property trust”; amending s. 736.151, F.S.; 31 providing that homestead property transferred by one 32 or both settlor spouses to community property will not 33 be treated as a change of ownership for the purposes 34 of reassessing the property; providing that such 35 transfer qualifies as a change or transfer of legal or 36 equitable title between spouses; providing 37 construction and retroactive application; providing a 38 directive to the Division of Law Revision; providing 39 an effective date. 40 41 Be It Enacted by the Legislature of the State of Florida: 42 43 Section 1. Paragraph (b) of subsection (1), paragraph (a) 44 of subsection (2), subsection (3), paragraph (a) of subsection 45 (4), and paragraph (d) of subsection (8) of section 736.04117, 46 Florida Statutes, are amended, and subsection (12) is added to 47 that section, to read: 48 736.04117 Trustee’s power to invade principal in trust.— 49 (1) DEFINITIONS.—As used in this section, the term: 50 (b) “Authorized trustee” means a trustee, other than the 51 settlor or a beneficiary, who has the power to invade the 52 principal of a trust. For the purposes of this section, an 53 authorized trustee will not be considered a settlor of a second 54 trust, even if the authorized trustee created the trust 55 instrument governing the second trust or made a distribution of 56 assets from the first trust to the second trust. In determining 57 settlor intent with respect to a second trust or a modification 58 of the first trust, the intent of a settlor of the first trust, 59 a settlor of the second trust, or the authorized trustee may be 60 considered. 61 (2) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN 62 AUTHORIZED TRUSTEE HAS ABSOLUTE POWER TO INVADE.— 63 (a) Unless a trust instrument expressly provides otherwise, 64 an authorized trustee who has absolute power under the terms of 65 the trust to invade its principal, referred to in this section 66 as the “first trust,” to make current distributions to or for 67 the benefit of one or more beneficiaries may instead exercise 68 such power by modifying the terms of the first trust or by 69 appointing all or part of the principal of the trust subject to 70 such power in favor of a trustee of one or more other trusts, 71 whether created under the same trust instrument as the first 72 trust or a different trust instrument, including a trust 73 instrument created for the purposes of exercising the power 74 granted by this section, each referred to in this section as the 75 “second trust,” for the current benefit of one or more of such 76 beneficiaries only if: 77 1. The beneficiaries of the second trust include only 78 beneficiaries of the first trust; and 79 2. The second trust does not reduce any vested interest. 80 (3) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN 81 AUTHORIZED TRUSTEE DOES NOT HAVE ABSOLUTE POWER TO INVADE. 82 Unless the trust instrument expressly provides otherwise, an 83 authorized trustee who has a power, other than an absolute 84 power, under the terms of a first trust to invade principal to 85 make current distributions to or for the benefit of one or more 86 beneficiaries may instead exercise such power by modifying the 87 terms of the first trust or by appointing all or part of the 88 principal of the first trust subject to such power in favor of a 89 trustee of one or more second trusts. If the authorized trustee 90 exercises such power: 91 (a) The second trusts, in the aggregate, mustshallgrant 92 each beneficiary of the first trust beneficial interests in the 93 second trusts which are substantially similar to the beneficial 94 interests of the beneficiary in the first trust. 95 (b) If the first trust grants a power of appointment to a 96 beneficiary of the first trust, the second trust mustshall97 grant such power of appointment in the second trust to such 98 beneficiary, and the class of permissible appointees mustshall99 be the same as in the first trust. 100 (c) If the first trust does not grant a power of 101 appointment to a beneficiary of the first trust, the second 102 trust may not grant a power of appointment in the second trust 103 to such beneficiary. 104 (d) Notwithstanding paragraphs (a), (b), and (c), the term 105 of the second trust may extend beyond the term of the first 106 trust, and, for any period after the first trust would have 107 otherwise terminated, in whole or in part, under the provisions 108 of the first trust, the trust instrument of the second trust 109 may, with respect to property subject to such extended term: 110 1. Include language providing the trustee with the absolute 111 power to invade the principal of the second trust during such 112 extended term; and 113 2. Create a power of appointment, if the power holder is a 114 current beneficiary of the first trust, or expand the class of 115 permissible appointees in favor of which a power of appointment 116 may be exercised. 117 (4) DISTRIBUTION FROM FIRST TRUST TO SUPPLEMENTAL NEEDS 118 TRUST.— 119 (a) Notwithstanding subsections (2) and (3), unless the 120 trust instrument expressly provides otherwise, an authorized 121 trustee who has the power under the terms of a first trust to 122 invade the principal of the first trust to make current 123 distributions to or for the benefit of a beneficiary with a 124 disability may instead exercise such power by modifying the 125 terms of the first trust or by appointing all or part of the 126 principal of the first trust in favor of a trustee of a second 127 trust that is a supplemental needs trust if: 128 1. The supplemental needs trust benefits the beneficiary 129 with a disability; 130 2. The beneficiaries of the second trust include only 131 beneficiaries of the first trust; and 132 3. The authorized trustee determines that the exercise of 133 such power will further the purposes of the first trust. 134 (8) NOTICE.— 135 (d) The authorized trustee’s notice under this subsection 136 is not a trust disclosure document as defined in s. 736.1008(4) 137 and does not limit the right of any beneficiary to object to the 138 exercise of the authorized trustee’s power to invade principal 139 except as otherwise provided in other applicable provisions of 140 this code. With respect to the exercise of the authorized 141 trustee’s power to invade principal, such trust disclosure 142 document will not commence a limitations period unless the trust 143 disclosure document is provided after the effective date of the 144 exercise of such power to invade principal by the authorized 145 trustee. 146 (12) APPLICATION.— 147 (a) This section applies to all trusts that are governed by 148 the laws of this state or that have a principal place of 149 administration within this state. 150 (b) The amendments to this section by this act apply to all 151 trusts created before, on, or after the effective date of this 152 act. 153 Section 2. Subsection (3) of section 736.08125, Florida 154 Statutes, is amended to read: 155 736.08125 Protection of successor trustees.— 156 (3) Except as provided in s. 736.10085,nothing inthis 157 section does not affectaffectsany liability of the prior 158 trustee or the right of the successor trustee or any beneficiary 159 to pursue an action or claim against the prior trustee. 160 Section 3. Section 736.10085, Florida Statutes, is created 161 to read: 162 736.10085 Claims against former trustees.—An action or 163 claim by a successor trustee or other person acting on behalf of 164 the trust against a prior trustee is barred to the same extent 165 that the action or claim would be barred if brought by the 166 beneficiary whose interests are represented by the successor 167 trustee or other person acting on behalf of the trust. 168 Section 4. Section 736.1110, Florida Statutes, is created 169 to read: 170 736.1110 Ademption by satisfaction.— 171 (1) Property devised to or from a revocable trust which a 172 settlor gave to a donee during the settlor’s lifetime or which 173 is distributed from a revocable trust to a donee during the 174 settlor’s lifetime is to be treated as a satisfaction of a 175 devise to that donee, in whole or in part, upon the settlor’s 176 death, if any of the following circumstances applies: 177 (a) The trust instrument provides for the deduction of the 178 lifetime gift or distribution. 179 (b) The settlor or the trustee of the revocable trust 180 declares in a contemporaneous writing that the gift or 181 distribution is to be deducted from the devise or is in 182 satisfaction of the devise. 183 (c) The devisee acknowledges in writing that the gift or 184 distribution is in satisfaction of the devise. 185 (2) For purposes of part satisfaction, property distributed 186 or given during the settlor’s lifetime is valued at the time the 187 devisee came into possession or enjoyment of the property or at 188 the time of the death of the settlor, whichever occurs first. 189 (3) This section applies to revocable trusts that become 190 irrevocable on or after July 1, 2025. 191 Section 5. Subsections (1) and (2) of section 736.1502, 192 Florida Statutes, are amended to read: 193 736.1502 Definitions.—Unless the context otherwise 194 requires, as used in this part: 195 (1) “Community property” means the property and the 196 appreciation of and income from the property owned by a 197 qualified trustee of a community property trust during the 198 marriage of the settlor spouses. The property owned by a 199 community property trust pursuant to this part and the 200 appreciation of and income from such property areshall be201deemed tobecommunity property for purposes of general law. 202 (2) “Community property trust” means an express trust that 203 complies with s. 736.1503 and is created, amended, restated, or 204 modified on or after July 1, 2021. 205 Section 6. Subsection (3) is added to section 736.151, 206 Florida Statutes, to read: 207 736.151 Homestead property.— 208 (3) A transfer of homestead property by one or both of the 209 settlor spouses to a community property will not be treated as a 210 change of ownership for purposes of reassessing the property and 211 instead qualifies as a change or transfer of legal or equitable 212 title between spouses as described in s. 193.155(3)(a)2. 213 Section 7. The amendments made to ss. 736.1502 and 736.151, 214 Florida Statutes, as created by this act, are intended to 215 clarify existing law and shall apply to all community property 216 trusts created before, on, or after the effective date of this 217 act. 218 Section 8. The Division of Law Revision is directed to 219 replace, respectively, the phrase “this act” wherever it occurs 220 in this act with the assigned chapter number of this act and the 221 phrase “the effective date of this act” wherever it occurs in 222 this act with the date this act becomes a law. 223 Section 9. This act shall take effect upon becoming a law.