HB 385 2025
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
A bill to be entitled 1
An act relating to trusts; amending s. 736.04117, 2
F.S.; revising the definition of the term "authorized 3
trustee"; revising how an authorized trustee may 4
exercise the power to invade principal as an 5
authorized trustee administering a trust; providing 6
that notice of such exercise by an authorized trustee 7
is not a trust disclosure document; providing that a 8
trust disclosure document may not commence a 9
limitations period unless such trust disclosure 10
document is provided after the effective date of the 11
exercise of the power to invade principal by an 12
authorized trustee; providing applicability; amending 13
s. 736.08125, F.S.; providing an exception with regard 14
to protection of successor trustees; creating s. 15
736.10085, F.S.; barring certain actions initiated by 16
specified parties against prior trustees; creating s. 17
736.1110, F.S.; providing that property devised to or 18
from a revocable trust which is devised, given, or 19
distributed to a donee by a settlor during the 20
settlor's lifetime is treated as a satisfaction of 21
devise to that donee if certain criteria are met; 22
providing that property distributed or given to a 23
devisee during a settlor's lifetime is to be valued at 24
the time the devisee came into possession or enjoyment 25
HB 385 2025
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
of the property, or at the time of the death of th e 26
settlor, whichever occurs first; providing 27
applicability; amending s. 736.1502, F.S.; revising 28
the definitions of the terms "community property" and 29
"community property trust"; amending s. 736.151, F.S.; 30
providing that homestead property transferred by o ne 31
or both settlor spouses to community property will not 32
be treated as a change of ownership for the purposes 33
of reassessing the property; providing that such 34
transfer qualifies as a change or transfer of legal or 35
equitable title between spouses; providin g 36
construction and for retroactive application; 37
providing a directive to the Division of Law Revision; 38
providing an 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 pr incipal in trust.— 48
(1) DEFINITIONS.—As used in this section, the term: 49
(b) "Authorized trustee" means a trustee, other than the 50
HB 385 2025
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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 63
otherwise, an authorized trustee who has absolute power under 64
the terms of the trust to invade its principal, referred to in 65
this section as the "first trust," to ma ke current distributions 66
to or for the benefit of one or more beneficiaries may instead 67
exercise such power by modifying the terms of the first trust or 68
by appointing all or part of the principal of the trust subject 69
to 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 se ction as the 74
"second trust," for the current benefit of one or more of such 75
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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 o f 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 i n 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
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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 110
absolute power to invade th e principal of the second trust 111
during such 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
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
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 tr ust; 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 authorize d 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.— 146
(a) This section applies to all trusts that are governed 147
by the laws of this state or that have a principal place of 148
administration within this state. 149
(b) The amendments to this section by this act apply to 150
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
all trusts created b efore, on, or after the effective date of 151
this act. 152
Section 2. Subsection (3) of section 736.08125, Florida 153
Statutes, is amended to read: 154
736.08125 Protection of successor trustees. — 155
(3) Except as provided in s. 736.10085, nothing in this 156
section does not affect affects any liability of the prior 157
trustee or the right of the successor trustee or any beneficiary 158
to pursue an action or claim against the prior trustee. 159
Section 3. Section 736.10085, Florida Statutes, is created 160
to read: 161
736.10085 Claims against former trustees. —An action or 162
claim by a successor trustee or other person acting on behalf of 163
the trust against a prior trustee is barred to the same extent 164
that the action or claim would be barred if brought by the 165
beneficiary whose interes ts are represented by the successor 166
trustee or other person acting on behalf of the trust. 167
Section 4. Section 736.1110, Florida Statutes, is created 168
to read: 169
736.1110 Ademption by satisfaction. — 170
(1) Property devised to or from a revocable trust whi ch a 171
settlor gave to a donee during the settlor's lifetime or which 172
is distributed from a revocable trust to a donee during the 173
settlor's lifetime is to be treated as a satisfaction of a 174
devise to that donee, in whole or in part, upon the settlor's 175
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
death, if any of the following circumstances applies: 176
(a) The trust instrument provides for the deduction of the 177
lifetime gift or distribution. 178
(b) The settlor or the trustee of the revocable trust 179
declares in a contemporaneous writing that the gift or 180
distribution is to be deducted from the devise or is in 181
satisfaction of the devise. 182
(c) The devisee acknowledges in writing that the gift or 183
distribution is in satisfaction of the devise. 184
(2) For purposes of part satisfaction, property 185
distributed or given d uring the settlor's lifetime is valued at 186
the time the devisee came into possession or enjoyment of the 187
property or at the time of the death of the settlor, whichever 188
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
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F L O R I D A H O U S E O F R E P R E S E N T A T I V E S
appreciation of and incom e 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 by this act to ss. 736.1502 214
and 736.151, Florida Statutes, are intended to clarify existing 215
law and shall apply to all community property trusts created 216
before, on, or after the effective date of this act. 217
Section 8. The Division of Law Revision is directed to 218
replace, respectively, the phrase "this act" wherever it occurs 219
in this act with the assigned chapter number of this act and the 220
phrase "the effective date of this act" wherever it occurs in 221
this act with the date this act becomes a law. 222
Section 9. This act shall take effect upon becoming a law. 223