The whole section
A trust may be created only to the extent the purposes of the trust are lawful, not contrary to public policy, and possible to achieve.
Section 736.0404, Florida Statutes. Enacted in 2006 and amended in 2018.
Three requirements, joined by and, so all three must hold. Lawful is the narrowest. Possible to achieve is largely factual, and connects to section 736.0413, under which a charitable purpose that has become impossible or impracticable can be redirected by a court rather than simply failing.
Not contrary to public policy is the one that does the work, and the one nobody has defined.
The words that limit the damage
The phrase only to the extent deserves attention, because it decides what happens when a provision offends the section.
Read literally, a trust may be created to the extent its purposes qualify, which points toward severing the offending purpose rather than destroying the whole arrangement. That is consistent with how the Code handles similar problems elsewhere. Under section 736.0406 a trust procured by fraud or undue influence is void only as to the part so procured, and the remainder stands if it is not invalid for other reasons.
No Florida court has confirmed that reading of this section, and it matters, because most real challenges are aimed at a single clause, whether a condition on a beneficiary’s conduct, a restriction on marriage or religion, or a direction that a trustee do something the law will not support. Whether such a clause falls alone or takes the trust with it is unanswered here.
The settlor cannot draft around it
Florida trust law generally lets the settlor’s document override the Code, but section 736.0105(2) lists the exceptions, and paragraph (2)(c) covers the requirement that a trust have a purpose that is lawful, not contrary to public policy, and possible to achieve.
That is unsurprising. A provision whose whole function is to stop a settlor doing certain things would be worth little if the settlor could disapply it.
The one case, and what it tells you
Our review found a single decision citing this section, and it declined to decide the point.
In a 2022 Fourth District appeal, a beneficiary asked the court to hold that provisions of a testamentary trust were contrary to public policy under this section. The court set out the request and then refused it.
We decline to address whether provisions of the testamentary trust violate public policy or section 736.0404, because the issue was not ruled upon by the probate court and is premature for appellate review.
Gundlach v. Gundlach, No. 4D21-930 (Fla. 4th DCA May 25, 2022). The opinion carries the legend “Not final until disposition of timely filed motion for rehearing” and no reporter citation had issued.
We are publishing that because it is more informative than a bare zero. It tells you the argument is being made, that it reached a District Court of Appeal, and that what stopped it was the absence of a trial court ruling rather than any view about its merit. The case itself was reversed on a different point. The probate court had wrongly treated a petition for construction of trust rights as a will contest subject to the three month bar in the probate code.
So the questions remain open. What makes a trust purpose contrary to Florida public policy, when the Legislature has separately addressed several specific instances. Whether an offending purpose is severed or fatal. And whether the section reaches a purpose that was achievable when the trust was created and has since become impossible, which is territory the modification and termination provisions in Part IV also occupy.
Frequently Asked Questions
What purposes can a Florida trust have?
Section 736.0404 provides that a trust may be created only to the extent the purposes of the trust are lawful, not contrary to public policy, and possible to achieve. All three requirements have to hold.
Does an improper purpose destroy the whole trust?
Not necessarily. The section says a trust may be created only to the extent the purposes qualify, which points to a clause by clause analysis rather than an all or nothing result. Most challenges in practice are to a single provision rather than the trust as a whole.
Can a trust document override this?
No. Section 736.0105(2)(c) lists the requirement that a trust have a purpose that is lawful, not contrary to public policy, and possible to achieve among the provisions the terms of a trust cannot override.
What does contrary to public policy mean here?
No Florida court has said, under this section. The Legislature enacted the requirement in 2006 and amended it in 2018, and the only decision citing it declined to reach the question. Related public policy limits do exist elsewhere in the Code, most clearly in section 736.1108, which makes a clause penalising a beneficiary for contesting a trust unenforceable.
Has any Florida court applied it?
Not yet. In 2022 the Fourth District had the question squarely presented and refused to decide it, because the probate court had not ruled on it and the issue was premature for appellate review.
Common Situations
A condition on a beneficiary’s personal life. This is where a public policy argument would be made, and Florida has no decision under the section.
A purpose that has become impossible. Consider section 736.0413 for charitable trusts and the Part IV modification provisions.
A single objectionable clause. The words only to the extent point toward severance, though no court has confirmed it.
You want an appellate ruling. Gundlach shows the point has to be ruled on below first.
Sources of Law
- Section 736.0404, Florida Statutes (2025). Enacted by s. 4, ch. 2006-217; amended by s. 4, ch. 2018-35.
- Gundlach v. Gundlach, No. 4D21-930 (Fla. 4th DCA May 25, 2022).
- Section 736.0105(2)(c), Florida Statutes, placing this requirement beyond the terms of a trust.
- Section 736.1108, Florida Statutes, one specific public policy limit the Legislature did enact.
- 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 15, 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, and we now confirm the section number actually appears in a decision before relying on it, having found a search result for a statute whose number appears nowhere in the opinion returned.
- 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 15, 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.
