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, must shall grant
   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 must shall
   97  grant such power of appointment in the second trust to such
   98  beneficiary, and the class of permissible appointees must shall
   99  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 in this
  157  section does not affect affects any 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         736.1110Ademption 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 are shall be
  201  deemed to be community 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.