A wide power with one real limit
Most people assume a trust problem means a lawsuit. Often it does not. This section, which has never been amended since it was enacted in 2006, lets the people affected settle it themselves.
Except as otherwise provided in subsection (3), interested persons may enter into a binding nonjudicial settlement agreement with respect to any matter involving a trust.
Section 736.0111(2), Florida Statutes.
Any matter involving a trust is about as wide as statutory language gets. And interested persons is defined generously for this purpose, as persons whose interest would be affected by a settlement agreement. It is not confined to qualified beneficiaries.
Then subsection (3) supplies the limit, and it is the sentence that governs everything.
A nonjudicial settlement agreement among the trustee and trust beneficiaries is valid only to the extent the terms and conditions could be properly approved by the court. A nonjudicial settlement may not be used to produce a result not authorized by other provisions of this code, including, but not limited to, terminating or modifying a trust in an impermissible manner.
Section 736.0111(3), Florida Statutes.
So the power is not a way around the Code. It is a way around the courthouse. Anything a judge could not have done, the parties cannot do by agreeing. That is why the section sits alongside section 736.0412 on nonjudicial modification and section 736.04113 on judicial modification, which set out what is actually permitted.
The six listed matters
Subsection (4) gives examples. It says the matters that may be resolved include these, so the list does not restrict the general power in subsection (2).
- Interpretation or construction of the terms of the trust.
- Approval of a trustee’s report or accounting.
- Directing a trustee to refrain from a particular act, or granting a trustee any necessary or desirable power.
- Resignation or appointment of a trustee, and the determination of a trustee’s compensation.
- Transfer of the principal place of administration.
- The liability of a trustee for an action relating to the trust.
Several of those are worth a second look. Approving an accounting by agreement is how a family closes out a period without litigation. Fixing compensation by agreement heads off the fight that section 736.0708 otherwise produces. And settling trustee liability is the one that matters most to a trustee who wants to retire cleanly.
The consequence people miss
An agreement under this section does not sit beside the trust document as a side letter. The definitions section folds it in. The terms of a trust are defined to include the trust’s provisions as established, determined or amended by a nonjudicial settlement agreement under this section.
The agreement becomes the trust. That is a considerable thing to do around a conference table, and it is the reason the subsection (3) limit exists.
It also means a trustee reading the instrument years later has to ask whether any such agreement exists. See section 736.0103 for how far the phrase terms of a trust reaches.
And a judge is still available
Subsection (5) lets any interested person ask the court to approve or disapprove an agreement. That is useful in both directions. A trustee who wants certainty can seek approval. A beneficiary who thinks the agreement went beyond what the Code permits can ask a judge to say so.
No Florida court has cited this section, and the search says otherwise
A search for this section number returns one document, a 2022 federal habeas corpus case. We read all thirty one thousand characters of it. The section number does not appear anywhere in it.
The digits 736 occur once, in a citation to a United States Supreme Court decision reported at volume 501, with a pin cite to page 736, immediately followed by a parallel citation beginning 111. The search engine assembled a Florida statute number out of a page number and the volume number that followed it.
This is the second time we have found this exact pattern. The first was a statute whose number was manufactured out of 475 U.S. 717, 736. Both times the case had nothing to do with trusts, and both times reading the document was the only way to know.
So the honest position is that no Florida decision has construed this section, and that the single search result is not a decision about it at all.