The timing rule
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. If all of a revocable trust has been revoked, an action to contest the revocation may not be commenced until after the settlor’s death. This section does not prohibit such action by the guardian of the property of an incapacitated settlor.
Section 736.0207(2), Florida Statutes.
The logic is straightforward once stated. A revocable trust can be rewritten by the settlor at any moment, so there is nothing settled to litigate about. A court asked to invalidate an amendment today would be deciding the effect of a document the settlor could replace tomorrow.
The consequence for families is less comfortable. Someone watching a parent sign a series of amendments, each one moving more away from them, generally cannot do anything about it at the time. Everything waits for the death, and then the whole sequence becomes contestable at once.
Filing too early ends the case
This is the part worth knowing before anything is filed. In Habal v. Habal a son sued while his father was still living, challenging an amendment to his father’s revocable trust. The trial court dismissed with prejudice. The Fourth District affirmed.
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.
Habal v. Habal, No. 4D19-1493 (Fla. 4th DCA Sept. 9, 2020). The opinion carries the legend “Not final until disposition of timely filed motion for rehearing” and no reporter citation has issued.
With prejudice. Not dismissed without prejudice to refiling once the trust ripened. Not abated. Not stayed. A premature contest was not parked until it became timely; it was ended. We have found no Florida decision going the other way, and none suggesting a court must give a claimant the chance to come back later.
The court reached that result by plain reading.
Therefore, a plain reading of section 736.0207(2) clearly requires a trust to become irrevocable “by its terms or by the settlor’s death” before any action to contest the trust may commence, unless the settlor is incapacitated, in which event only the guardian may commence such an action.
Habal v. Habal, No. 4D19-1493 (Fla. 4th DCA Sept. 9, 2020).
The only exception, and how narrow it is
The statute exempts one person, the guardian of the property of an incapacitated settlor. Note what that does not say. It does not exempt an interested beneficiary who believes the settlor is incapacitated. It does not exempt a family member with a power of attorney. It exempts the guardian of the property, an office that exists only where a court has appointed someone to it.
Both sides in this case acknowledge that the son is not the guardian of the settlor’s property. Thus, the trial court properly dismissed the son’s claims based on its finding that section 736.0207(2) barred the trust contest while the settlor was still alive, regardless of whether the settlor was incapacitated or not when he amended the [trust].
Habal v. Habal, No. 4D19-1493 (Fla. 4th DCA Sept. 9, 2020).
Read the last clause closely. Regardless of whether the settlor was incapacitated or not. The son’s allegation of incapacity did not open the door, because incapacity is not what the exception turns on. Who you are is what it turns on.
That leaves an obvious question unanswered, and we flag it as unanswered. What does a beneficiary do when the settlor is incapacitated, a guardian of the property has been appointed, and the guardian will not bring the claim? Habal did not have to decide it and no other Florida decision we located addresses it.
One practical observation. Because the trustee’s duties while a trust is revocable are owed exclusively to the settlor, a beneficiary in this position is usually also unable to obtain accountings or information. The timing bar and the information bar arrive together.
The half nobody has litigated
Subsection (1) puts the burden of establishing the grounds for invalidity on the contestant. That is the entire provision, and our review found no Florida decision analyzing it. The one case that construes this section quoted subsection (1) in passing and then decided everything on the timing bar in subsection (2).
So a number of practical questions have no answer under this section. What standard of proof applies to establishing grounds for invalidity. Whether the burden shifts once a confidential relationship and active procurement are shown, as it does in the will contest cases. Whether it operates differently for a challenge to a revocation than to the trust itself. Those answers currently come from the testamentary and undue influence case law rather than from this statute.
A note for anyone checking this section
A search for this section number returns five documents, and two of them are not about trust contests at all. Both are Florida Supreme Court orders amending the probate rules, one from 2008 and one from 2023. In each, the section number appears exactly once, in a Statutory References list attached to the committee notes for a guardian advocate rule, and the whole of the entry is the section number followed by its short title. We searched both documents in full, roughly 76,000 and 78,000 characters, to confirm there was nothing else. Neither discusses this statute and neither should be cited as though it does.
A third, Swan v. Trost, mentions the section only in a footnote while deciding a discovery dispute. The court’s own compressed description of the rule is a useful summary and is not a holding about it.
Section 736.0207 provides that an action to contest the validity of a revocable trust may not be commenced until the trust becomes irrevocable by the settlor’s death or by other trust terms, except by the guardian of an incapacitated settlor’s property.
Swan v. Trost, 100 So. 3d 1205 (Fla. 2d DCA 2012), footnote 1. The court’s paraphrase of the statute, not a quotation of it.
We also record one thing we could not resolve. The electronic text of Habal block quotes subsection (2) in wording that does not match the Legislature’s current text, and no amendment explains the difference, since the section has not been changed since 2014. We have not established whether the opinion misquotes the statute or the electronic copy is corrupted. For that reason the statute is quoted on this page from the Legislature’s own site, and Habal is quoted only for the court’s own words, which are what matters here in any event.