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, mustshallgrant 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 mustshall96 grant such power of appointment in the second trust to such 97 beneficiary, and the class of permissible appointees mustshall98 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 inthis 152 section does not affectaffectsany 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: 165 736.1110 Ademption 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 areshall be196deemed tobecommunity 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.