What the section provides
A trust may be created for charitable purposes. Charitable purposes include, but are not limited to, the relief of poverty; the advancement of arts, sciences, education, or religion; and the promotion of health, governmental, or municipal purposes.
Section 736.0405(1), Florida Statutes.
The list is illustrative. A purpose does not have to appear in it to be charitable.
If the terms of a charitable trust do not indicate a particular charitable purpose or beneficiary, the court may select one or more charitable purposes or beneficiaries. The selection must be consistent with the settlor’s intent to the extent such intent can be ascertained.
Section 736.0405(2), Florida Statutes.
That is a gap filling power, and it is distinct from cy pres under section 736.0413. This subsection supplies a purpose the settlor never specified. Cy pres redirects a purpose the settlor did specify which has since become unlawful, impracticable, impossible or wasteful.
The two words that carried an appeal
A charitable trust has no ordinary beneficiary. Nobody is entitled to distributions in the way a family beneficiary is, so the usual person who would hold a trustee to account does not exist. That makes standing the central question, and the statute addresses it in a single phrase. The settlor, among others, has standing to enforce the trust.
Those two words were litigated in the long-running dispute over the Alfred duPont charitable trust and the Nemours Foundation. The Attorney General of Delaware sued the Florida trustees. The trial court held she had no standing, reading the subsection as excluding anyone with a special interest in the trust. The Fifth District reversed, reviving both her standing and a contract claim.
The reasoning on this section appears in a separate writing rather than in the court’s own opinion, and we attribute it accordingly.
The trial court also claimed that section 736.0405(3), Florida Statutes, must be read to exclude persons or entities with a special interest in a public trust. But the statute merely says that the ‘settlor of a charitable trust, among others, has standing to enforce the trust.’ Id. § 736.0405(3) (emphasis added). Far from an exclusion, the highlighted language emphasizes that the legislature recognized that ‘others’ may have standing as well.
Jennings v. Durden, No. 5D2023-0064 (Fla. 5th DCA May 31, 2024), Makar, J., concurring in result only. This is a separate writing and not the court’s holding.
The doctrine the court relied on was the common law special interest doctrine, and it survived because section 736.0106 keeps the common law of trusts in force except where the Code has modified it. The per curiam majority used that section to reject the trustees’ argument that allowing the suit offended the separation of powers.
What the section says now
Subsection (3) in its current form reads in full.
The settlor of a charitable trust, among others, has standing to enforce the trust. This subsection may not be construed to afford standing to the Attorney General of any other state, or another public officer of another state, with respect to any charitable trust having its principal place of administration in this state.
Section 736.0405(3), Florida Statutes.
The second sentence bars an out of state attorney general, or another public officer of another state, from standing under this subsection as to a charitable trust administered in Florida.
That sentence was added in 2025, and the legislative record leaves little doubt what prompted it. We checked, because a sequence of dates proves nothing on its own.
Every staff analysis prepared for the bill cites the 2024 decision by name. The Senate Rules Committee analysis describes the position the amendment was addressing.
The common law ‘special interest’ exception to the general rule of standing to file an action to enforce a trust provision in a charitable trust has not been codified in the Trust Code, although it is alluded to in s. 736.0405(3), F.S. In a 2024 case, a district court of appeal noted that the special interest rule had not been changed by statute and stated that the Legislature could change or eliminate that common law rule by amending the Trust Code.
Florida Senate, Bill Analysis and Fiscal Impact Statement, CS/SB 806, Committee on Rules, March 31, 2025. The footnote to that sentence cites Jennings v. Durden. A staff analysis is a legislative document, not law and not a court’s words.
And the same analysis says what the bill would do about the case in front of it.
Should the Florida Attorney General act, the bill would prohibit the Attorney General of the State of Delaware from continuing to enjoy special interest standing in the trust action regarding the trust created by the will of Alfred I. duPont, which created the Nemours Foundation.
Florida Senate, Bill Analysis and Fiscal Impact Statement, CS/SB 806, March 31, 2025, under Private Sector Impact.
So the analyses name the decision, name the litigant, name the trust, and state the practical effect. One caution we keep. No analysis uses the words “in response to” or “overrules”, and none states a legislative purpose in those terms. What is established is what the analyses actually say, which is a good deal.
Two further facts complete the picture. The Florida Supreme Court denied review of the 2024 decision on February 20, 2025, while the bill was moving. And the same act worked a second front. It also amended section 736.0110(3), adding a paragraph giving the Florida Attorney General exclusive authority to represent the general public, unnamed charitable beneficiaries and any person with a special interest, and stating that the attorney general of another state does not have standing to assert those rights.
What follows for anyone reading an older authority on this section is straightforward. A decision from before 2025 was construing a subsection that did not contain the second sentence.
One further piece of the history, which we did not have when this page first went up. The same charitable trust produced a decision in the First District in 2014, on appeal from the same Duval County circuit court, in which the then Attorney General of Delaware lost. That court reasoned from the permissive wording of section 736.0110(3) that even Florida’s own Attorney General is not an indispensable party to a trust administered under Florida law, and that it would defy logic to give another state’s attorney general a status Florida’s does not have. So the standing question ran one way in 2014, the other way in 2024, and was then addressed by statute in 2025.
What has not been decided
Only one decision cites this section, and its discussion of the section sits in a concurrence. So no Florida holding tells you who the "others" with standing are, how much interest makes an interest special, or how the new second sentence interacts with the common law doctrine the 2024 decision relied on. That last question is the interesting one, because the doctrine did not come from this subsection in the first place.