The whole section
Except as required by s. 736.0403 or a law other than this code, a trust need not be evidenced by a trust instrument but the creation of an oral trust and its terms may be established only by clear and convincing evidence.
Section 736.0407, Florida Statutes. Enacted in 2006 and never amended since.
One sentence doing two things. It confirms that a Florida trust can exist without any document, and it then makes proving one hard.
The permission matters more than it sounds. People create trusts without knowing it. A parent transfers money to one child to hold for another, a friend takes title to property on an understanding about who really owns it, an insurance payment is received by somebody who agreed to pass it on. None of that involves a document. Florida law does not require one.
Clear and convincing, for both halves
The standard applies to the creation of the trust and its terms. Establishing that some arrangement existed is not enough; what its terms were has to be proved to the same standard.
The Third District stated it while reviving a claim in 2018.
Florida’s statutory Trust Code expressly allows the creation of oral trusts, though the terms of such a trust must be established by ‘clear and convincing evidence.’ § 736.0407, Fla. Stat. (2017).
Vazquez Calderon v. Vazquez, 251 So. 3d 303 (Fla. 3d DCA 2018). The opinion carries the legend “Not final until disposition of timely filed motion for rehearing.”
Note carefully what that case did and did not decide. It reversed a dismissal with prejudice, holding that a complaint adequately alleged that the defendant had become trustee of life insurance proceeds for the plaintiff’s benefit, and that a Bolivian will was not fatally inconsistent with the beneficiary designation. The court was explicit that the allegations "remain to be proven". No oral trust was established. The decision tells you such a claim can survive a motion to dismiss, and nothing about what evidence carries it.
The thing an oral trust cannot do
The opening words, except as required by s. 736.0403 or a law other than this code, are the real limit, and they are easy to skip past.
Section 736.0403(2)(b) provides that the testamentary aspects of a revocable trust, executed by a Florida domiciliary, are invalid unless the instrument was executed with the formalities required for a will, which in Florida means signed in the presence of two attesting witnesses who also sign. Testamentary aspects are defined as the provisions disposing of trust property on or after the settlor’s death, other than to the settlor’s estate.
So an oral arrangement cannot do the work of a will. Whatever an oral trust can achieve during the settlor’s lifetime, it cannot direct where property goes at death. That is also why the Second District held that reformation cannot rescue an improperly witnessed amendment, which our page on section 736.0415 covers.
Two search results, and only one is usable
Our review located two documents citing this section. The first is the 2018 case above. The second we are not relying on, and it is worth explaining why, because it illustrates how carefully a search result has to be read.
The second document is a 2013 decision, and the record we retrieved contains only a dissenting opinion. It has no caption, no docket number and no panel, so we could not even establish which District Court of Appeal decided it from the document itself. Within that dissent, this section appears in a single sentence describing what a trial court had found and cited. And the dissent’s own opening tells you the majority had vacated that very order.
So the reference sits three removes from authority. It is a dissent, reciting a trial court order, that the majority set aside. A dissent is not the law, language a court quotes is not language the court wrote, and an order that has been vacated has no force. We mention the case only so that anyone who finds it in the same search knows we looked at it and why it is not on this page.
That leaves the section essentially unconstrued. What evidence satisfies the standard, whether a course of conduct alone can establish terms, and how the section interacts with the statute of frauds for land, which is a law other than the Code and therefore preserved by the opening words, are all open in Florida.