Can a Trust Be Contested in Florida?

Can a Trust Be Contested in Florida?

Yes, after the settlor dies or the trust otherwise becomes irrevocable. Before that moment, the courthouse door is closed to nearly everyone.

Fla. Stat. §736.0207(2) provides that an action to contest the validity of all or part of a revocable trust, or the revocation of part of a revocable trust, may not be commenced until the trust becomes irrevocable by its terms or by the settlor’s death. It adds that if all of a revocable trust has been revoked, an action to contest the revocation may not be commenced until after the settlor’s death. The section closes by preserving one exception, that it does not prohibit such an action by the guardian of the property of an incapacitated settlor.

Fla. Stat. §736.0207(1) then sets the burden. In an action to contest the validity or revocation of all or part of a trust, the contestant has the burden of establishing the grounds for invalidity. You are not asking the trustee to justify the trust. You are proving it should never have existed.

Practice pointer. The first question in any trust contest call is whether the settlor is alive, and the second is what date the trustee’s letter was sent. Those two answers decide whether there is a case before anyone discusses the merits.

The Four Grounds That Void a Florida Trust

Fla. Stat. §736.0406 names them in a single sentence, and the consequence it attaches is stronger than most people expect.

“If the creation, amendment, or restatement of a trust is procured by fraud, duress, mistake, or undue influence, the trust or any part so procured is void. The remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons. If the revocation of a trust, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void.”

Three things in that sentence do real work. The word is void, not voidable and not reformed, so a tainted provision does not get rewritten into something fairer. The statute is severable, so a contest can take down one amendment and leave the original trust standing, which is frequently the actual goal. And it reaches a revocation as well as a creation, so a trust someone pressured the settlor into tearing up can be restored.

Two more grounds operate in practice even though this section does not list them. Lack of capacity comes from Fla. Stat. §736.0601, discussed next. Improper execution is the other, because an instrument that was never signed with Florida’s formalities was never a valid trust to begin with.

Practice pointer. Plead the amendment, not the trust, when the amendment is the problem. The severability sentence is what lets a court restore the plan the family recognises instead of sending everything to intestacy.

Capacity, and Why It Is the Will Standard

Fla. Stat. §736.0601 is one sentence. The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.

That surprises families, because it is a lower bar than the one they imagine. A person can be forgetful, dependent on others for daily care, and carrying a diagnosis, and still have the capacity Florida requires. A diagnosis is evidence, not an answer, and the question is directed at the moment of signing rather than at the months around it.

Practice pointer. Capacity cases are won and lost on contemporaneous records, not on how the family remembers the last years. Medical notes from the week of the signing are worth more than a relative’s account of the decade.

Who Can Contest, and When the Case Ripens

Florida’s Fourth District Court of Appeal applied the timing bar directly in Habal v. Habal, No. 4D19-1493 (Fla. 4th DCA Sept. 9, 2020). A son sought to challenge an amendment to his father’s revocable trust while the father was still living. The court’s own words:

“In this case, we hold that, pursuant to the plain language of section 736.0207, Florida Statutes (2019), a contingent remainderman who is not the settlor’s guardian does not have standing to challenge the viability of an amendment to a revocable trust while the settlor still lives.”

On the mechanism, the court read the subsection as clearly requiring a trust to become irrevocable by its terms or by the settlor’s death before any action to contest may commence, unless the settlor is incapacitated, in which event only the guardian may commence such an action. And on the facts, it recorded that both sides acknowledged the son was not the guardian of the settlor’s property, so the trial court properly dismissed the claims, regardless of whether the settlor was incapacitated or not when he amended the trust.

That last clause is the one worth sitting with. Suspecting that your parent lacked capacity when they signed does not open the door. Only a guardianship does, and a guardianship is its own proceeding with its own standard.

Practice pointer. A family watching a living parent’s trust change in ways they do not understand has a guardianship question, not a trust contest. Treating it as a trust contest produces a dismissal and a year of legal fees.

Who Handles This, and What Do I Bring You?

People ask me who handles the filing, and the honest answer is that I cannot tell you whether you have a case until I know two dates. Bring me the trustee’s letter and the envelope it arrived in. I look at the postmark before I look at the trust, because the statute measures from when the trustee sent the package, and I have had to turn away claims I thought were strong on the merits.

A trust contest and a will contest run on different clocks and different statutes, which is the first thing to establish. Who currently holds legal title while the fight runs is who owns property in a revocable trust, and the trustee's duties during it are in Florida trust administration. If the dispute is really about a payment the trustee took, that is trustee fees.

The Clock That Ends Most Trust Contests

Fla. Stat. §736.0604 provides that an action to contest the validity of a trust that was revocable at the settlor’s death is barred, if not commenced within the earlier of the time as provided in chapter 95, or six months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding.

Read the trigger closely. The six months starts when the trustee sent the package, not when you opened it, understood it, or finished grieving. And the package is ordinary looking. A copy of the trust, a short letter naming the trustee, and a line about the time allowed. Families routinely file it with the funeral paperwork.

Practice pointer. Keep the envelope. The statute measures from sending, so the postmark is evidence and a disputed send date is a real defence. Photograph it before it goes in a drawer.

What No Florida Appellate Court Has Decided

Here is something we would rather tell you than let you discover mid-case. No Florida appellate decision directly construes Fla. Stat. §736.0604. We went looking, and the best guidance that exists is a trial order and a decision from another state.

The trial order is Lunding v. Fantini, No. CA21-0840 (Fla. 7th Cir. Ct., St. Johns Cty., Aug. 19, 2025), where a trust contest filed thirteen years after the settlor’s death was held barred. The court reasoned that a challenge to a trust instrument’s validity includes, but is not limited to, fraud, fraud in its execution, undue influence, lack of testamentary capacity and improper execution, which is to say anything that could and should undermine its enforceability. It then read the chapter 95 branch as a four-year period by way of the catch-all in Fla. Stat. §95.11(3)(p), and framed the policy as Florida’s longstanding preference that estates of decedents be speedily and finally determined.

Two honest limits on that. It is a circuit court order, so it is persuasive only and binds nobody, and a district court of appeal could read the chapter 95 branch differently. And the six-month branch was not at issue in it, so the part of the statute most likely to decide your case is the part with the least authority behind it. The only appellate decision anywhere applying this Florida statute comes from an Ohio court applying Florida law to a Florida trust.

Practice pointer. When a statute has no appellate gloss, the conservative deadline is the operating deadline. File against the six-month date and do not wait to see whether a court would give you four years.

What Defends a Trust From a Contest

Most trust contests are decided by things that happened years before anyone was angry, and they are visible in the drafting file or they are not.

• A signing that was actually supervised. Formalities observed, witnesses who were present, and a record of who else was in the room.
• The settlor seen alone. The beneficiary who drove the settlor to the appointment should not be in the meeting, and the file should say that they were not.
• Contemporaneous capacity notes. Not a conclusion that the settlor was competent, but what they said, what they knew about their assets, and who they named without prompting.
• An explanation for the unequal share. A trust that treats children differently invites a contest. A trust that treats them differently and says why, in the settlor’s own reasoning, is far harder to attack.
• Prompt trustee notice after the death. Sending the §736.0604 package starts the six-month clock. A trustee who delays leaves the estate exposed for years.

If you are the trustee rather than the challenger, the reciprocal pages are Florida trust administration and trustee fees. If the dispute is really about information rather than validity, start at trust beneficiary rights, because a trustee who will not produce an accounting is a different problem with a different remedy.

Frequently Asked Questions

Common Situations

The letter in the funeral folder. A Jacksonville daughter called eight months after her mother died, having found a copy of the trust and a one-page letter from her brother, the trustee, in a stack of paperwork. The letter had done exactly what the statute contemplates, and the six months had run. Her grounds may well have been good. The question was never reached.

The amendment nobody could challenge yet. A Bradenton family watched their father amend his trust twice in a year, each time after visits from one sibling. They wanted to sue immediately. Under the standing rule they had no case while he lived, and the path that was actually available to them was a guardianship proceeding, which is a different filing with a different standard and a different burden.

The trustee who never sent anything. A widow in Ocala learned three years after her stepfather’s death that a restatement had cut her mother’s side of the family out. Because no trustee notice had ever been sent, the six-month branch had never started, which left the longer chapter 95 period. That is a better position to be in, and it is still a position with an end date.

Sources of Law

• Fla. Stat. §736.0207 (annotated)(1) to (2) (trust contests; burden on the contestant; no action until the trust becomes irrevocable by its terms or the settlor’s death; guardian of an incapacitated settlor excepted). History, s. 2, ch. 2006-217; s. 9, ch. 2011-183; s. 7, ch. 2014-127.
• Fla. Stat. §736.0406 (annotated) (fraud, duress, mistake or undue influence; the trust or part so procured is void; severability; a procured revocation is void).
• Fla. Stat. §736.0601 (annotated) (capacity of the settlor of a revocable trust is the capacity required to make a will).
• Fla. Stat. §736.0604 (annotated) (contest barred at the earlier of the chapter 95 time or six months after the trustee sent the trust instrument and the statutory notice). History, s. 6, ch. 2006-217. Statute text parsed from the Legislature’s own published text; retrieved 2026-09-14.
• Habal v. Habal, No. 4D19-1493 (Fla. 4th DCA Sept. 9, 2020) (a contingent remainderman who is not the settlor’s guardian lacks standing to challenge an amendment while the settlor lives). ⚠ No reporter citation has been assigned to this opinion, so it is cited by docket number and date. The opinion carries the legend “Not final until disposition of timely filed motion for rehearing.” Verify its current status before relying on it.
• Lunding v. Fantini, No. CA21-0840 (Fla. 7th Cir. Ct., St. Johns Cty., Aug. 19, 2025) (contest filed thirteen years after death barred; chapter 95 branch read as four years via Fla. Stat. §95.11(3)(p)). ⚠ A circuit court order. Persuasive only and not binding precedent. The six-month branch of §736.0604 was not at issue.
• In re Brown’s Estate, 117 So. 2d 478, 480 (Fla. 1960) (Florida’s longstanding policy that estates of decedents be speedily and finally determined); In re Tobias’ Estate, 192 So. 2d 83, 86 (Fla. 2d DCA 1966).
• ⚠ Stated as an open question. No Florida appellate decision directly construes Fla. Stat. §736.0604. The only appellate decision anywhere applying it is from an Ohio court applying Florida law. Treat the six-month branch as the operating deadline.
• Advertised fees are honored for 90 days from the posted date. Litigation is quoted case by case and is not offered at a flat fee. Government costs are additional and passed through at cost. Fees are not a prediction of outcome, and nothing here predicts the result of any contest.

What I See in These Files

In 14 years of law practice the trust contests that reach me are rarely lost on the merits. They are lost on the calendar, and I have had to say so to people who were plainly wronged. Someone received a letter, filed it away, and called me when the distributions did not match what a parent had promised, which is usually months past the point where I could help.

I also litigate deeds and fiduciary matters after they fail, which enhances the practice of drafting them. The other pattern I meet is the family that wants to sue while a parent is still living, and I have to redirect that conversation entirely, because the standing rule forecloses it and a guardianship sometimes does not. My first two questions on these calls are always the same, and neither is about the merits. Avoid setting aside correspondence from a trustee until someone has read it against the six-month rule, and avoid assuming a suspicion about capacity gives you standing today.

Updated on September 14, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law and our posted fees, not legal advice, and no attorney-client relationship is created. Whether a contest is available to you depends on your specific facts and dates, which we confirm at a free consult.