One sentence, and it does a great deal
Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another person having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented.
Section 736.0304, Florida Statutes. Enacted in 2006 and never amended.
That is the whole section. It is how a trust matter gets settled against people who cannot possibly agree to it, and without it a great deal of ordinary trust administration would be impossible.
Four categories of person may be represented, namely minors, incapacitated individuals, the unborn, and people whose identity or location is unknown and not reasonably ascertainable. That last one carries its own diligence requirement. Someone you have not bothered to look for is not unascertainable.
Where it sits in the Part
The opening words, unless otherwise represented, make this the residual provision. Work through the others first. If a power of appointment holder can bind the person under section 736.0302, or a parent or fiduciary can under section 736.0303, this section is not reached.
If nothing fits, or if what fits is inadequate, section 736.0305 lets a court appoint a representative instead.
The two words nobody has defined
Everything here runs on substantially identical, and neither this section nor the definitions section tells you what it means.
Identical would be too strict; no two beneficiaries hold quite the same interest. Similar would be too loose. The statute chose something in between and left it to be argued, and the qualifier with respect to the particular question or dispute tells you how the argument runs. The comparison is not between two people in general. It is between their positions on the one question being settled.
That is also where the conflict limit does its work. Two remainder beneficiaries may have substantially identical interests on whether an accounting is acceptable, and directly opposed interests on how the remainder is divided between them.
The one time a Florida court has quoted this section
A search returns two documents. One is a 2003 bankruptcy decision, which predates the Trust Code by four years and cannot be citing it.
The other is a 2023 Third District decision, and it is unusual enough to be worth explaining. It is not a trust case at all. It concerns a habeas corpus petition brought on behalf of an unborn child. In the course of it, the court set out provisions in which the Legislature has recognised unborn persons as entitled to representation, and quoted this section in full and accurately alongside a probate provision, in each case adding the words emphasis added.
Here is the introduction to that passage.
Under Florida’s Trust and Estate law, the Legislature has provided that an unborn child is entitled to representation.
Unborn Child v. Reyes (Fla. 3d DCA Feb. 24, 2023).
We want to be precise about what that is and is not. The citation is genuine and the quotation is accurate. But the court was not deciding anything about virtual representation, about what substantially identical means, or about how this section works in a trust. It was using the existence of the provision as evidence of a legislative attitude in an entirely different field.
So a Florida court has quoted this section. No Florida court has construed it. Anyone researching virtual representation who finds that case in a citator should know the difference before relying on it.
Using it, and testing it
If you are assembling a settlement that has to bind minors or unborn beneficiaries, identify the representative for each represented person and record why the interests are substantially identical on that question. The statute is question specific and the file should be too.
If you are on the other side, the two lines of attack are visible from the text. The interests were not substantially identical, or there was a conflict. Both are factual, and neither has been narrowed by any decision.