STORAGE NAME: h1173a.CIV
DATE: 3/20/2025
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FLORIDA HOUSE OF REPRESENTATIVES
BILL ANALYSIS
This bill analysis was prepared by nonpartisan committee staff and does not constitute an official statement of legislative intent.
BILL #: CS/HB 1173
TITLE: Florida Trust Code
SPONSOR(S): Duggan
COMPANION BILL: CS/SB 806 (Yarborough)
LINKED BILLS: None
RELATED BILLS: None
Committee References
Civil Justice & Claims
14 Y, 2 N, As CS
Insurance & Banking
Judiciary
SUMMARY
Effect of the Bill:
CS/HB 1173 limits the common law’s “special interest exception” for charitable trust enforcement by giving the
Florida Attorney General the exclusive authority to assert, in any judicial proceeding within Florida or elsewhere,
the rights of a qualified beneficiary of a charitable trust having its principal place of administration in Florida. The
bill also expressly prohibits the Attorney General or other public officer of another state from asserting the rights
made exclusive to the Florida Attorney General by the bill, and makes conforming changes.
Fiscal or Economic Impact:
None
JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY
ANALYSIS
EFFECT OF THE BILL:
The bill amends provisions of the Florida Trust Code to limit the common law’s “special interest exception” for
charitable trust enforcement in order to prevent the Attorney General or other public officers of states other than
Florida from suing to enforce the rights of the qualified beneficiaries of a charitable trust with its principal place of
administration in Florida. To accomplish this, the bill:
Amends s. 736.0110, F.S., to provide that, where the Florida Attorney General asserts the rights of a
qualified beneficiary under that section, the Florida Attorney General has the exclusive authority to
represent the general public, unnamed charitable beneficiaries, and any person having a special interest in
a charitable trust in any judicial proceeding, within Florida or elsewhere, with respect to all matters
relating to the charitable trust. This standing extends to all matters relating to the trust’s administration,
including contract and trust law claims relating to charitable distributions and the exercise of trustee
powers, and the bill expressly prohibits the Attorney General or other public officer of another state from
asserting the rights made exclusive to the Florida Attorney General under this section. (Section 1)
Amends s. 736.0405, F.S., to provide that, though current law gives the settlor of a charitable trust, “among
others,” standing to enforce the trust, this section may not be construed to afford standing to the Attorney
General or public officer of another state with respect to any charitable trust having its principal place of
administration in Florida. (Section 3)
The bill also:
Makes a conforming change to s. 736.0106, F.S. (Section 2)
Reenacts s. 738.303, F.S., to incorporate the amendment made to s. 736.0110, F.S. (Section 4)
Provides an effective date of upon becoming a law. (Section 5)
JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY
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RELEVANT INFORMATION
SUBJECT OVERVIEW:
Florida Attorney General
Article IV, section 4 of the Florida Constitution designates the Florida Attorney General as the chief legal officer of
this state. Elected to serve a four-year term, the Florida Attorney General’s powers and duties, codified in Art. IV,
section 4 of the Florida Constitution and in ch. 16, F.S., include asserting the rights of Florida’s citizens and those
impacted by business and commercial activities occurring in this state in legal proceedings as directed by law.
Florida Trust Code
Generally speaking, a trust is a relationship in which one party (the “settlor”)
1 gives another party (the “trustee”)
2
the right to hold title to the settlor’s assets for a third party’s benefit (the “beneficiary”).
3 A trust may be created
and take effect during a settlor’s lifetime (“a living trust”) or may be created by a will or other disposition and take
effect when the settlor dies (“testamentary trust”).
4 A trust may also be revocable (so that the terms may be
changed at any time before the settlor’s death) or irrevocable (so that the terms cannot be modified after the
trust’s creation absent a court order upon the consent of the beneficiaries or where the trust’s purposes have
become frustrated or illegal).
5
Trust Governance
A trust is generally governed by the law of the jurisdiction designated in the trust’s terms, provided there is a
sufficient nexus to the designated jurisdiction at the time of the trust’s creation or during the trust’s
administration; a sufficient nexus may include, but is not limited to, the location of real property held by the trust
or the residence or location of an office of the settlor, a trustee, or any beneficiary.
6 However, where there is no
controlling designation in the trust’s terms, a trust is governed by the law of the jurisdiction where the settlor
resides at the time of the trust’s creation.
7
Florida trusts are generally governed by the Florida Trust Code, codified in ch. 736, F.S. However, additional
provisions of Florida law may apply if the trust has special attributes, and, importantly, the terms of the trust
govern over Trust Code provisions unless the Trust Code provides otherwise.
8 Further, s. 736.0106, F.S., provides
that “[t]he common law of trusts and principles of equity supplement [the Trust Code], except to the extent
modified by [the Trust Code] or another law of this state.”
Trust Creation
Under Florida law, a trust is created only if certain conditions are met. Specifically, to create a trust:
The settlor must have capacity to create a trust;
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The settlor must indicate an intent to create a trust;
1 “Settlor” means a person, including a testator, who creates or contributes property to a trust. S. 736.0103(18), F.S.
2 A settlor can designate a trustee, and successor trustees, in the trust document itself; however, where there is no designated trustee, or if
the designated trustee is unable or unwilling to accept the trusteeship, the qualified beneficiaries may select a trustee by unanimous
agreement, or else a court may appoint a trustee. S. 736.0704, F.S.
3 A “beneficiary” may have a present or future beneficial interest in a trust, which interest may be vested or contingent. S. 736.0103(4), F.S.
4 See “inter vivos trust” and “testamentary trust,” Black's Law Dictionary (11th ed. 2019); s. 736.0401, F.S.
5 Greg Depersio, Investopedia (Apr. 30, 2023), Revocable Trust v. Irrevocable Trust: What’s the Difference,
https://www.investopedia.com/ask/answers/071615/what-difference-between-revocable-trust-and-living-trust.asp (last visited Mar. 20,
2025).
6 S. 736.0107, F.S.
7 Id.
8 Ss. 736.0102 and 736.0105, F.S.
9 The capacity required to create, amend, revoke, or add property to a trust, or to direct the actions of the trustee, is generally the same as
that required to make a will. In other words, the settlor must be at least 18 years of age and of sound mind, meaning that he or she
understands the nature and extent of the property placed in trust, the identities of the beneficiaries, and the effect of the disposition. Ss.
732.501 and 736.0601, F.S. JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY
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The trust must have a definite beneficiary,
10 or else be a charitable trust, a trust for the care of an animal,
11
or a trust for a non-charitable purpose;
12
The trustee must have duties to perform;
13 and
The same person cannot be the sole trustee and sole beneficiary.
14
Further, a trust may be created only to the extent that its purposes are lawful, not contrary to public policy, and
possible to achieve.
15
Principal Place of Administration
Generally speaking, a trust’s “principal place of administration” is the usual place where the day-to-day activities of
the trust occur and, typically, where the trusts’ records are kept; this place may be designated in the trust’s terms
or, where no such designation is made, determined by operation of law. However, s. 736.0108, F.S., provides that a
designation of a trust’s principal place of administration is valid only if there is a sufficient connection with the
designated jurisdiction; under this section, such a connection exists if:
A trustee’s principal place of business is located in or a trustee is a resident of the designated jurisdiction;
or
All or part of the administration occurs in the designated jurisdiction.
16
Further, s. 736.0108, F.S., specifies that, where there is no valid designation of a trust’s principal place of
administration, the principal place of administration is the trustee’s usual place of business where the records
pertaining to the trust are kept or, if the trustee has no place of business, the trustee’s place of residence. Other
rules apply where there is no designation but there are co-trustees, or where the trustee is a bank, association, or
trust company organized under Florida law or a bank or savings association organized under United States law
with its main office in Florida.
17
Rights of Qualified Beneficiaries
Under Florida law, a “qualified beneficiary” is a living beneficiary who, on the date the beneficiary’s qualification is
determined:
Is a distributee or permissible distributee of trust income or principal;
Would be a distributee or permissible distributee of trust income or principal if the interest of the
distributees described above terminated on that date without causing the trust’s termination; or
Would be a distributee or permissible distributee of trust income or principal if the trust terminated in
accordance with its terms on that date.
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10 A beneficiary is “definite” if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities. S.
736.0402(2), F.S.
11 A trust may be created for the care of an animal alive during the settlor’s lifetime. Such a trust terminates on the animal’s death or, if the
trust was created to provide for the care of more than one qualifying animal, on the death of the last surviving animal. S. 736.0408, F.S.
12 A trust may be created for a non-charitable purpose without a definite or definitely ascertainable beneficiary. Such a trust may not be
enforced for more than 1,000 years. S. 736.0409, F.S.
13 Trustees must generally comply with the duties set out in the trust instrument. The Florida Trust Code also confers a number of duties on
trustees, intended to ensure that trustees put the beneficiaries’ interests before their own interests and act fairly and in good faith to
preserve and protect the trust’s assets for the beneficiaries’ benefit. S. 736.0801, F.S.
14 S. 736.0402(1), F.S.
15 S. 736.0404, F.S.
16 This does not preclude other means for establishing a sufficient connection.
17 S. 736.0108, F.S.
18 For example, imagine a scenario in which a settlor establishes a trust, the terms of which provide that: 1) upon the settlor’s death, the
residue of the trust will be held by a trustee who will distribute the income to Person A during her lifetime; and 2) upon Person A’s death,
the trustee will distribute the remainder to Person B. When the settlor later dies, Person A is a qualified beneficiary because she will receive
the income during her lifetime, and Person B is a qualified beneficiary because she will receive the remainder upon Person A’s death.
Contrast this with a scenario in which the settlor establishes a trust, the terms of which provide that: 1) upon the settlor’s death, the residue
of the trust will be distributed outright to Person A; and 2) if Person A predeceases the settlor, the residue of the trust is to be distributed
outright to Person B. If, after establishing the trust, the settlor dies and Person A is still living, Person A is a qualified beneficiary because she
is entitled to the residue of the trust; however, Person B would not be a qualified beneficiary as the trust would terminate without Person B
receiving any distributions. On the other hand, in that scenario, if Person A had died before the settlor did, Person B would be a qualified
beneficiary. S. 736.0103, F.S. JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY
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Whether a beneficiary is “qualified” or not has legal significance, as a qualified beneficiary generally has more
rights and obligations with respect to the trust than others who may have an interest therein; this is because the
interests of a “qualified beneficiary” are typically more immediate and defined, while the interests of a beneficiary
that is not a “qualified beneficiary” are more contingent or undefined. Importantly, the rights of a qualified
beneficiary generally include the right to be kept reasonably informed of the trust and its administration, to receive
distributions in accordance with the trust’s terms, and to assert their own rights in court.
19
Judicial Proceedings
Generally speaking, the courts intervene in trust administration only to the extent that an interested person
invokes the court’s jurisdiction.
20 Where the courts do intervene, judicial proceedings involving a trust may relate
to the validity, administration, or distribution of a trust, and may include proceedings to:
Determine a trust’s validity;
Appoint or remove a trustee;
Ascertain beneficiaries;
Determine any question arising in the administration or distribution of any trust, including questions
pertaining to the construction of the trust instrument;
Determine the existence or non-existence of any immunity, power, privilege, duty, or right;
Obtain a declaration of rights; or
Determine any other matters involving trustees and beneficiaries.
21
Charitable Trusts
A “charitable trust” is a trust created for charitable purposes, which purposes may include poverty relief; the
advancement of the arts, science, education, or religion; or the promotion of health, governmental, or municipal
objectives.
22 The settlor of a charitable trust may designate in the trust instrument a particular charitable purpose
or beneficiary, but, where the trust instrument includes no such designation, the court may select one or more
charitable purposes or beneficiaries.
23
Under s. 736.0405, F.S., the settlor of a charitable trust, “among others,” has standing
24 to enforce the trust in court,
and, as discussed above, Florida law also gives a named qualified beneficiary of a charitable trust standing to assert
its own rights in court.
25 Further, s. 736.0110, F.S., gives the Florida Attorney General the authority to assert, in any
judicial proceeding, the rights of a qualified beneficiary with respect to a charitable trust having its principal place
of administration in Florida. This is a particularly useful tool when the trust instrument does not name a specific
charitable organization as a beneficiary, but instead specifies a more general charitable purpose from which any
number of charitable organizations or persons may benefit; in such instances, courts have found that the public at
large lacks standing to sue as, “if it were otherwise there would be no end to potential litigation against a given
defendant…brought by individuals or residents, all possessed of the same general interest, since none of them
would be bound by res judicata
26 as a result of prior suits.”
27
However, the common law
28 also provides a “special interest exception” to charitable trust enforcement;
specifically, courts have found that a party alleging a “special interest” – that is, an interest beyond that general
interest possessed by the public at large – has standing to sue to enforce a charitable trust.
29 Because of this
19 S. 736.0813, F.S.
20 S. 736.0201, F.S.
21 Id.
22 S. 736.0405, F.S.
23 Id.
24 “Standing” refers to the capacity of a person to bring a lawsuit in court. Legal Information Institute, Standing,
https://www.law.cornell.edu/wex/standing (last visited Mar. 20, 2025).
25 S. 736.0110, F.S.
26 “Res judicata” refers to the legal principal that a cause of action may not be relitigated once it has been judged on the merits. Legal
Information Institute, Res Judicata, https://www.law.cornell.edu/wex/res_judicata (last visited Mar. 20, 2025).
27 U.S. Steele Corp. v. Save Sand Key, Inc., 303 So. 2d 9 (Fla. 1974).
28 The “common law” is law derived from judicial decisions instead of from statutes. Legal Information Institute, Common Law,
https://www.law.cornell.edu/wex/common_law (last visited Mar. 20, 2025).
29 State of Del. ex rel. Gebelein v. Florida First Nat. Bank of Jacksonville, 381 So. 2d 1075 (Fla. 1st DCA 1979). JUMP TO SUMMARY ANALYSIS RELEVANT INFORMATION BILL HISTORY
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exception, Florida courts have allowed the Attorney General of a state other than Florida to sue to enforce a
charitable trust with its principal place of administration in Florida where the court found that the trust
instrument provided a benefit for the people of that other state; this, the courts found, created a “special interest”
in the trust’s enforcement which gave that state’s Attorney General standing to sue on behalf of its interested
citizens.
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BILL HISTORY
COMMITTEE REFERENCE ACTION DATE
STAFF
DIRECTOR/
POLICY CHIEF
ANALYSIS
PREPARED BY
Civil Justice & Claims
Subcommittee
14 Y, 2 N, As CS 3/20/2025 Jones Mawn
THE CHANGES ADOPTED BY THE
COMMITTEE:
Limited the Florida Attorney General’s exclusive authority under the bill.
Insurance & Banking
Subcommittee
Judiciary Committee
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THIS BILL ANALYSIS HAS BEEN UPDATED TO INCORPORATE ALL OF THE CHANGES DESCRIBED ABOVE.
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30 See, e.g., id.; see also, e.g., Jennings v. Durden, 2024 WL 2788198 (Fla. 5th DCA 2024).