The invalidating rule
The testamentary aspects of a revocable trust, executed by a settlor who is a domiciliary of this state at the time of execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state. For purposes of this subsection, the term “testamentary aspects” means those provisions of the trust instrument that dispose of the trust property on or after the death of the settlor other than to the settlor’s estate.
Section 736.0403(2)(b), Florida Statutes.
Florida will formalities mean the settlor signs in the presence of two attesting witnesses, and those witnesses sign in the presence of the settlor and of one another. The Second District has applied that requirement to a trust amendment strictly. In Kelly v. Lindenau a second amendment left a house to a friend of the settlor and was not witnessed by two people. Everyone agreed what the settlor had wanted. The amendment failed anyway, and the court held that reformation under section 736.0415 could not save it, because that statute reforms the terms of a trust rather than the way it was signed.
We are describing that holding rather than quoting it. The sentence in which the Second District states the strict construction rule contains dashes this site cannot reproduce in rendered text, and the discipline we work to says the answer is always to protect the quotation rather than alter a court’s punctuation.
What counts as a testamentary aspect
The definition is narrower than the instinct. It reaches provisions that dispose of trust property on or after the settlor’s death, and it expressly excludes dispositions to the settlor’s estate. Provisions operating during the settlor’s lifetime are not testamentary aspects at all.
That matters because it means the question is never simply whether a trust was witnessed. It is which provisions are exposed if it was not. A Florida bankruptcy court made the point that the definition is confined to this subsection and does not travel.
This definition of ‘testamentary aspects’ applies only for purposes of subsection 736.0403(2)(b) of the Florida Statutes. Id.
In re Rogove, 443 B.R. 182 (Bankr. S.D. Fla. 2010).
The validating rule people skip
Subsection (2)(b) opens with the words notwithstanding subsection (1), which tends to make readers treat subsection (1) as beside the point. It is not, and a federal court in Florida put it at the centre of a case in 2023.
Section 736.0403(1) states that ‘[a] trust not created by will is validly created if the creation of the trust complies with the law of the jurisdiction in which the trust instrument was executed or the law of the jurisdiction in which, at the time of creation, the settlor was domiciled.’
And if a trust contains ‘testamentary aspects,’ the trust must meet the formalities required for the execution of a will in this state, if it was ‘executed by a settlor who is a domiciliary of this state [Florida] at the time of execution.’ Fla. Stat. § 736.0403(2)(b). So too, this Court concludes that the validity of the Restatements depends on Doran’s domicile at the time they were executed.
Nogara v. Lynn Law Office, P.C., No. 22-23142-CIV (S.D. Fla. Nov. 20, 2023), an order on cross motions for summary judgment. No reporter citation has issued.
Read what that did to the case. Domicile became a question of fact, and because it was genuinely disputed, summary judgment could not be entered. Two documents can be signed identically and one is exposed to the two witness rule while the other is not, depending only on where the settlor was living.
It is worth saying what that case actually was. A Miami-Dade circuit court had invalidated two restatements of a trust for want of subscribing witnesses. The disappointed beneficiary then sued the law firm that drafted them. This provision is not only a trust question; it is the reason execution malpractice claims exist.
One caution about that decision. It restates the statute and applies it. It does not resolve any contested question about what the statute means, and it is a trial level order in a malpractice case rather than an appellate ruling on trust law. Useful, and not authority in the way Kelly is.
A failure of formalities does not make the trust a will
The most substantial judicial treatment of this provision we located is a Florida bankruptcy decision, and it is the only one that genuinely construes it.
Florida law recognizes the possibility of an inter vivos trust with testamentary aspects. See Fla. Stat. § 736.0403(2)(b); Robinson v. Robinson (In re Estate of Robinson), 720 So.2d 540, 541 (Fla.4th DCA 1998).
However, before and after the enactment of subsection 736.0403(2)(b) of the Florida Statutes and its predecessor statutes, Florida courts have ruled that an inter vivos trust that has testamentary aspects is not testamentary, or the functional equivalent of a will, under Florida law. Zuckerman v. Alter, 615 So.2d 661, 663 (Fla.1993); Robinson, 720 So.2d at 542; Schroeder v. Gebhart, 825 So.2d 442, 445 (Fla. 5th DCA 2002).
In re Rogove, 443 B.R. 182 (Bankr. S.D. Fla. 2010).
The court went on to hold that the trust before it did not have testamentary aspects in the first place, because distributions to the beneficiary did not depend on the settlor’s death. That is the analysis worth copying. Identify the provisions that operate at or after death, and test only those.
A Florida bankruptcy decision is persuasive authority here rather than binding, and we treat it that way. It has been followed. A later Middle District bankruptcy opinion cites it six times by pin cite, on every point, without distinguishing or limiting it. We located no adverse treatment of it as of August 14, 2026.
The date limit nobody discusses
Subsection (4) provides that paragraph (2)(b) applies to trusts created on or after the effective date of the Florida Trust Code, and that a former statute continues to apply to trusts created before it. So the two witness rule in this section is not a rule about all Florida trusts. It is a rule about trusts created from mid 2007 onward.
Here is what we found, and we offer it as an observation about what the decisions do not say rather than as a criticism of any of them. None of the three federal decisions we read cites subsection (4) or the former statute at all. One applied paragraph (2)(b) to a family trust executed in July 2002. Another involved a trust dating from 2001, restated in 2014, and never raised the timing question either. The closest any of them comes is an acknowledgment that predecessor statutes existed, without naming them or working out which one governed.
There may be a good answer in each case. A restatement or amendment signed after the Code may well be the operative instrument even where the original trust is older, which would make the point immaterial on those facts. But the answer is not in the opinions, and anyone relying on the two witness rule to attack or defend an older trust should check subsection (4) rather than assume it away.
We also flag a loose end honestly. A Florida appellate decision, Megiel-Rollo v. Megiel, appears in our search results with text citing subsection (4) in connection with a repealed predecessor statute. We have read that case in full for a different section and not for this purpose, and a search snippet is not a substitute for reading it. It may be the Florida authority on exactly this question and we have not yet confirmed what it says.