Florida Senate - 2025                              CS for SB 262
       
       
        
       By the Committee on Judiciary; and Senator Berman
       
       
       
       
       
       590-02004-25                                           2025262c1
    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 a community property trust
   33         will not be treated as a change of ownership for the
   34         purposes of reassessing the property; providing that
   35         such transfer qualifies as a change or transfer of
   36         legal or equitable title between spouses; providing
   37         construction and retroactive application; providing an
   38         effective date.
   39          
   40  Be It Enacted by the Legislature of the State of Florida:
   41  
   42         Section 1. Paragraph (b) of subsection (1), paragraph (a)
   43  of subsection (2), subsection (3), paragraph (a) of subsection
   44  (4), and paragraph (d) of subsection (8) of section 736.04117,
   45  Florida Statutes, are amended, and subsection (12) is added to
   46  that section, to read:
   47         736.04117 Trustee’s power to invade principal in trust.—
   48         (1) DEFINITIONS.—As used in this section, the term:
   49         (b) “Authorized trustee” means a trustee, other than the
   50  settlor or a beneficiary, who has the power to invade the
   51  principal of a trust. For the purposes of this section, an
   52  authorized trustee will not be considered a settlor of a second
   53  trust, even if the authorized trustee created the trust
   54  instrument governing the second trust or made a distribution of
   55  assets from the first trust to the second trust. In determining
   56  settlor intent with respect to a second trust or a modification
   57  of the first trust, the intent of a settlor of the first trust,
   58  a settlor of the second trust, or the authorized trustee may be
   59  considered.
   60         (2) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN
   61  AUTHORIZED TRUSTEE HAS ABSOLUTE POWER TO INVADE.—
   62         (a) Unless a trust instrument expressly provides otherwise,
   63  an authorized trustee who has absolute power under the terms of
   64  the trust to invade its principal, referred to in this section
   65  as the “first trust,” to make current distributions to or for
   66  the benefit of one or more beneficiaries may instead exercise
   67  such power by modifying the terms of the first trust or by
   68  appointing all or part of the principal of the trust subject to
   69  such power in favor of a trustee of one or more other trusts,
   70  whether created under the same trust instrument as the first
   71  trust or a different trust instrument, including a trust
   72  instrument created for the purposes of exercising the power
   73  granted by this section, each referred to in this section as the
   74  “second trust,” for the current benefit of one or more of such
   75  beneficiaries only if:
   76         1. The beneficiaries of the second trust include only
   77  beneficiaries of the first trust; and
   78         2. The second trust does not reduce any vested interest.
   79         (3) DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN
   80  AUTHORIZED TRUSTEE DOES NOT HAVE ABSOLUTE POWER TO INVADE.
   81  Unless the trust instrument expressly provides otherwise, an
   82  authorized trustee who has a power, other than an absolute
   83  power, under the terms of a first trust to invade principal to
   84  make current distributions to or for the benefit of one or more
   85  beneficiaries may instead exercise such power by modifying the
   86  terms of the first trust or by appointing all or part of the
   87  principal of the first trust subject to such power in favor of a
   88  trustee of one or more second trusts. If the authorized trustee
   89  exercises such power:
   90         (a) The second trusts, in the aggregate, must shall grant
   91  each beneficiary of the first trust beneficial interests in the
   92  second trusts which are substantially similar to the beneficial
   93  interests of the beneficiary in the first trust.
   94         (b) If the first trust grants a power of appointment to a
   95  beneficiary of the first trust, the second trust must shall
   96  grant such power of appointment in the second trust to such
   97  beneficiary, and the class of permissible appointees must shall
   98  be the same as in the first trust.
   99         (c) If the first trust does not grant a power of
  100  appointment to a beneficiary of the first trust, the second
  101  trust may not grant a power of appointment in the second trust
  102  to such beneficiary.
  103         (d) Notwithstanding paragraphs (a), (b), and (c), the term
  104  of the second trust may extend beyond the term of the first
  105  trust, and, for any period after the first trust would have
  106  otherwise terminated, in whole or in part, under the provisions
  107  of the first trust, the trust instrument of the second trust
  108  may, with respect to property subject to such extended term:
  109         1. Include language providing the trustee with the absolute
  110  power to invade the principal of the second trust during such
  111  extended term; and
  112         2. Create a power of appointment, if the power holder is a
  113  current beneficiary of the first trust, or expand the class of
  114  permissible appointees in favor of which a power of appointment
  115  may be exercised.
  116         (4) DISTRIBUTION FROM FIRST TRUST TO SUPPLEMENTAL NEEDS
  117  TRUST.—
  118         (a) Notwithstanding subsections (2) and (3), unless the
  119  trust instrument expressly provides otherwise, an authorized
  120  trustee who has the power under the terms of a first trust to
  121  invade the principal of the first trust to make current
  122  distributions to or for the benefit of a beneficiary with a
  123  disability may instead exercise such power by modifying the
  124  terms of the first trust or by appointing all or part of the
  125  principal of the first trust in favor of a trustee of a second
  126  trust that is a supplemental needs trust if:
  127         1. The supplemental needs trust benefits the beneficiary
  128  with a disability;
  129         2. The beneficiaries of the second trust include only
  130  beneficiaries of the first trust; and
  131         3. The authorized trustee determines that the exercise of
  132  such power will further the purposes of the first trust.
  133         (8) NOTICE.—
  134         (d) The authorized trustee’s notice under this subsection
  135  is not a trust disclosure document as defined in s. 736.1008(4)
  136  and does not limit the right of any beneficiary to object to the
  137  exercise of the authorized trustee’s power to invade principal
  138  except as otherwise provided in other applicable provisions of
  139  this code. With respect to the exercise of the authorized
  140  trustee’s power to invade principal, such trust disclosure
  141  document will not commence a limitations period unless the trust
  142  disclosure document is provided after the effective date of the
  143  exercise of such power to invade principal by the authorized
  144  trustee.
  145         (12) APPLICATION.—This section applies to all trusts that
  146  are governed by the laws of this state or that have a principal
  147  place of administration within this state.
  148         Section 2. Subsection (3) of section 736.08125, Florida
  149  Statutes, is amended to read:
  150         736.08125 Protection of successor trustees.—
  151         (3) Except as provided in s. 736.10085, nothing in this
  152  section does not affect affects any liability of the prior
  153  trustee or the right of the successor trustee or any beneficiary
  154  to pursue an action or claim against the prior trustee.
  155         Section 3. Section 736.10085, Florida Statutes, is created
  156  to read:
  157         736.10085 Claims against former trustees.—An action or
  158  claim by a successor trustee or other person acting on behalf of
  159  the trust against a prior trustee is barred to the same extent
  160  that the action or claim would be barred if brought by the
  161  beneficiary whose interests are represented by the successor
  162  trustee or other person acting on behalf of the trust.
  163         Section 4. Section 736.1110, Florida Statutes, is created
  164  to read:
  165         736.1110Ademption by satisfaction.—
  166         (1) Property devised to or from a revocable trust which a
  167  settlor gave to a donee during the settlor’s lifetime or which
  168  is distributed from a revocable trust to a donee during the
  169  settlor’s lifetime is to be treated as a satisfaction of a
  170  devise to that donee, in whole or in part, upon the settlor’s
  171  death, if any of the following circumstances applies:
  172         (a) The trust instrument provides for the deduction of the
  173  lifetime gift or distribution.
  174         (b) The settlor or the trustee of the revocable trust
  175  declares in a contemporaneous writing that the gift or
  176  distribution is to be deducted from the devise or is in
  177  satisfaction of the devise.
  178         (c) The devisee acknowledges in writing that the gift or
  179  distribution is in satisfaction of the devise.
  180         (2) For purposes of part satisfaction, property distributed
  181  or given during the settlor’s lifetime is valued at the time the
  182  devisee came into possession or enjoyment of the property or at
  183  the time of the death of the settlor, whichever occurs first.
  184         (3) This section applies to revocable trusts that become
  185  irrevocable on or after July 1, 2025.
  186         Section 5. Subsections (1) and (2) of section 736.1502,
  187  Florida Statutes, are amended to read:
  188         736.1502 Definitions.—Unless the context otherwise
  189  requires, as used in this part:
  190         (1) “Community property” means the property and the
  191  appreciation of and income from the property owned by a
  192  qualified trustee of a community property trust during the
  193  marriage of the settlor spouses. The property owned by a
  194  community property trust pursuant to this part and the
  195  appreciation of and income from such property are shall be
  196  deemed to be community property for purposes of general law.
  197         (2) “Community property trust” means an express trust that
  198  complies with s. 736.1503 and is created, amended, restated, or
  199  modified on or after July 1, 2021.
  200         Section 6. Subsection (3) is added to section 736.151,
  201  Florida Statutes, to read:
  202         736.151 Homestead property.—
  203         (3) A transfer of homestead property by one or both of the
  204  settlor spouses to a community property trust will not be
  205  treated as a change of ownership for purposes of reassessing the
  206  property and instead qualifies as a change or transfer of legal
  207  or equitable title between spouses as described in s.
  208  193.155(3)(a)2.
  209         Section 7. The amendments made by this act to ss.
  210  736.04117, 736.1502, and 736.151, Florida Statutes, are remedial
  211  and apply to trusts created before, on, or after the effective
  212  date of this act.
  213         Section 8. This act shall take effect upon becoming a law.