The designation, and the condition on it
The meaning and effect of the terms of a trust are determined by:
(1) The law of the jurisdiction designated in the terms of the trust, provided there is a sufficient nexus to the designated jurisdiction at the time of the creation of the trust or during the trust administration, including, but not limited to, the location of real property held by the trust or the residence or location of an office of the settlor, trustee, or any beneficiary; or
(2) In the absence of a controlling designation in the terms of the trust, the law of the jurisdiction where the settlor resides at the time the trust is first created.
Section 736.0107, Florida Statutes. Enacted in 2006 and never amended since.
A choice of law clause in a Florida trust is not self-executing. It works provided there is a sufficient nexus to the chosen jurisdiction, tested either at creation or during administration.
The statute gives examples and says they are not exhaustive. They are real property held by the trust in that place, or the residence or an office of the settlor, the trustee, or any beneficiary. That last one is generous. A single beneficiary living in the chosen state may supply the connection.
The most detailed judicial account of the section is in a federal district court decision from 2024, which set out the structure and then declined to decide it, calling the nexus question a fact intensive inquiry, poorly briefed, and premature on a motion to dismiss. The court also observed that the whole dispute might be moot if the two states’ trust law produced the same answer, which is a practical point worth remembering before litigating choice of law at all.
Florida keeps a veto
Notwithstanding subsection (1) or subsection (2), a designation in the terms of a trust is not controlling as to any matter for which the designation would be contrary to a strong public policy of this state.
Section 736.0107, Florida Statutes, closing paragraph.
This is the provision that decides real cases, and it applies matter by matter. A designation can hold for most purposes and fail for one.
The clearest application is a 2019 Florida bankruptcy decision. A trust had been amended in 2014 to designate the law of Belize. The court refused to give that effect, on the ground that Florida courts will not enforce a spendthrift trust designed to let a person place their own assets beyond the reach of creditors. The debtor did not contest that Belize law was contrary to Florida public policy on that point, and the court held Florida law governed.
We are describing rather than quoting that passage, because the electronic text of the opinion inserts stray spaces before its punctuation, including inside the citation, and reproducing it would put those artifacts inside a quotation. The proposition itself is not in doubt.
The lesson for planning is direct. Designating a favourable jurisdiction does not import that jurisdiction’s asset protection where Florida treats the result as offensive to its own policy. Our page on section 736.0505 covers the self settled trust question that decision turned on, and it was the section the court analysed at greatest length.
Both decisions are federal, and neither is binding
Our review located two documents genuinely citing this section, and both are federal courts sitting in Florida rather than Florida courts. One is a published bankruptcy decision, the other a trial level order on a motion to dismiss which was invisible in a default search and surfaced only when every precedential status was requested.
So no Florida state court has construed this section. On a provision that decides which body of law applies to a trust, that is a notable silence, and it means the persuasive federal material is doing all the work.
A note on how a search behaves here, because it is misleading. A section number search returns thirteen documents. Several are criminal appeals and habeas decisions from 1990, which cannot be citing a statute that took effect in 2007. A hit older than July 1, 2007 is not a hit at all.
Several questions remain unanswered. How much connection is sufficient, whether a nexus arising only during administration can validate a designation that failed at creation, which Florida policies are strong enough to override, and whether the parties can litigate the question before any dispute about the trust’s terms has arisen.
Frequently Asked Questions
Can a Florida trust choose another state’s law?
Yes, subject to two conditions. Section 736.0107(1) gives effect to the law of the jurisdiction designated in the terms of the trust, provided there is a sufficient nexus to that jurisdiction at the time of creation or during administration. And a designation is not controlling as to any matter for which it would be contrary to a strong public policy of Florida.
What counts as a sufficient nexus?
The statute gives examples rather than a test. They include the location of real property held by the trust, or the residence or location of an office of the settlor, trustee, or any beneficiary. The list is expressly not exhaustive. A federal court in Florida called the nexus question a fact intensive inquiry and declined to resolve it on a motion to dismiss.
What happens if the trust does not choose?
Subsection (2) applies the law of the jurisdiction where the settlor resides at the time the trust is first created.
Can Florida ignore a foreign choice of law?
Yes, where the designation would be contrary to a strong public policy of Florida. A Florida bankruptcy court did exactly that with a trust that had been amended to designate Belize law, holding that Florida will not enforce a spendthrift trust designed to put a person’s own assets beyond creditors.
Is this the same as where the trust is administered?
No, and the two are often confused. Governing law is this section. The principal place of administration is section 736.0108, and the Fourth District has held that a clause choosing another state’s law is not a designation of the place of administration.
Common Situations
A trust naming another state’s law. Check the connection to that state first. Property, or a settlor, trustee or beneficiary located there.
An offshore designation in a self settled trust. The public policy proviso is where that fails, and a Florida bankruptcy court has applied it.
A trust that names no governing law. Subsection (2) applies the law where the settlor resided when the trust was first created.
Both states would reach the same result. A federal judge has pointed out the choice of law fight may be unnecessary.
Sources of Law
- Section 736.0107, Florida Statutes (2025). Enacted by s. 1, ch. 2006-217, and never amended since.
- Mehdipour v. Rensin (In re Rensin), 600 B.R. 870 (Bankr. S.D. Fla. 2019) (Kimball, B.J.). Persuasive federal authority.
- Gunton v. Lofquist, No. 2:23-cv-321 (M.D. Fla. June 18, 2024), an order on a motion to dismiss. Trial level, not binding, and invisible in a default search. We do not name the authoring judge from the opinion, because the signature block in the electronic text is illegible.
- Section 736.0108, Florida Statutes, on the principal place of administration, which is a different question.
- Reading note: the electronic text of the bankruptcy decision inserts spaces before punctuation, including within its citation of this section. We described its reasoning rather than reproducing that passage.
- Reading note: several documents returned by a search for this section number predate July 1, 2007, when the Florida Trust Code took effect, and therefore cannot be citing it.
- Our review searched the Florida Supreme Court, the Florida District Courts of Appeal, the Florida federal district courts, the Florida bankruptcy courts and the Eleventh Circuit on August 14, 2026, requesting every precedential status rather than the default view. We report a nil result as our own review and not as a certainty. Searching by section number is an imperfect tool in two known ways. It misses decisions that discuss a statute without naming it, and we have confirmed a Florida decision that names a section yet does not appear in a search for that number.
- Decisions discussed here are published opinions in other parties’ cases. They are not matters handled by this firm and they predict nothing about any reader’s case. No commercial citator pass has been run on this research.
Updated on August 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 published court decisions, not legal advice, and no attorney-client relationship is created. Reading this page does not make us your lawyers. Please do not send confidential details until we have connected.
