Florida Statute 736.04113: When a Court Can Change an Irrevocable Trust

What Section 736.04113 Says

People find this section from one of two directions. Either a trust written decades ago no longer fits the world it landed in, or the beneficiaries have looked at what they are getting and decided they would rather have it a different way. Those are not the same case, and Florida’s courts treat them very differently.

The statute is titled judicial modification of irrevocable trust when modification is not inconsistent with settlor’s purpose, and that title is doing more work than the text.

Four things are worth marking before we get to the cases.

Subsection (1) has a gate before it has a standard. The whole section opens with upon the application of a trustee of the trust or any qualified beneficiary. Nobody else starts this, and a Florida appellate court has reversed on exactly that point.

The three grounds are alternatives. You need one, not all three, and each asks about the trust’s purposes rather than anyone’s convenience.

Termination is one of the remedies. A court modifying under this section may end the trust in whole or in part, which is why cases about ending trusts and cases about tweaking them run under the same statute.

Subsection (4) is a door out of the statute entirely, and it is the reason one of the cases below came out the way it did. The section sits inside the broader Florida Trust Code.

Who Can Ask

In 2016 the Second District decided a case that turned entirely on that opening phrase, and it is worth knowing because the situation is common.

A couple divorced. The husband had created an irrevocable trust years earlier, and a California home sat inside it. He asked the divorce court to modify the trust so the home could be brought into the equitable distribution, testifying that the trust had been set up to protect the home from his heirs if he died before his wife during the marriage, and that the purpose no longer existed now that they were divorcing. The trial court modified the trust and reached the house.

The Second District reversed.

“The unambiguous language of section 736.04113(1) compels us to decline the Former Husband’s invitation to construe section 736.04113 in that manner.”

“Furthermore, the record is devoid of any evidence that the Former Wife, as trustee and beneficiary, filed an application to request modification or termination of the Trust in the first instance.”

Nelson v. Nelson, 206 So. 3d 818 (Fla. 2d DCA 2016) (slip op. at 4).

The settlor wanted the modification and could not get it, because the statute names the trustee and the qualified beneficiaries, and he was neither in the necessary posture. That is a strange-sounding result until you see the logic. The section exists to protect the trust’s purposes, so it puts the request in the hands of the people charged with carrying them out.

Two practical consequences. If you are the one who wants a change, the first question is whether you are a trustee or a qualified beneficiary of this trust, which is read out of the document rather than assumed. And if you are on the other side, defending a trust against a modification, standing is the first thing to check, not the last.

The Three Grounds

Assume the right person is asking. Now the grounds, and an honest account of how each behaves.

(a) Purposes fulfilled, or illegal, impossible, wasteful, or impracticable. This is the cleanest ground and the one with the least argument in it. A trust set up to pay for an education that is finished, or to hold an asset that no longer exists, has run out of work to do.

(b) Unanticipated circumstances defeating a material purpose. This carries the most litigation, and the reason is in the words. It requires circumstances the settlor did not anticipate, and it requires that following the trust would defeat or substantially impair a material purpose. Both halves are factual, which is why these cases resist quick resolution.

In 2013 the Fourth District showed how factual. A trust benefited the settlor’s descendants, and an adult adoption later brought a new person into that class. The trustee argued that following the trust’s literal terms would substantially impair a material purpose, and the trial court granted summary judgment. The Fourth District reversed, holding the settlor’s intent was the fact issue that controlled and that the lawyer who drafted the trust had never discussed adult adoptions with him. Whether the adoption substantially impaired a material purpose was not something to resolve on a paper record, and the court said so. That is the practical shape of ground (b). It is usually a trial, not a motion.

(c) A material purpose no longer exists. The narrowest and the most tempting to overstate. Notice it says the purpose no longer exists, not that it has become inconvenient or expensive to serve.

And subsection (3)(a) tells the court what to look at, meaning the terms and purposes of the trust, the facts and circumstances surrounding its creation, and extrinsic evidence relevant to the proposed modification. In plain terms, the drafting file, the correspondence, and the testimony of anyone who was in the room. That is the evidence these cases are won and lost on, and it is why they are worth evaluating early, while people are still available to ask.

The Best Interests Door

There is a second statute, and it is the one people reach for when the purposes argument is thin. Section 736.04115 allows a court to modify a trust without regard to the reasons in 736.04113, on the application of a trustee or any qualified beneficiary, if compliance with the terms of the trust is not in the beneficiaries’ best interests. It sounds like a much easier standard.

In 2018 the Second District showed that it is not. A settlor had left her son income for life, with the entire principal going to three educational institutions at his death. She had amended the trust twice, and when she wanted to give a lump sum to someone, she knew how; she had done it for another person. All the beneficiaries agreed to terminate the trust early and divide the assets, arguing that termination would avoid trustees’ fees, administrative expenses, and market risk. The trial court granted summary judgment and ordered termination.

Reversed. The court began where these cases always begin.

“The settlor’s intent is the polestar of trust interpretation.”

Horgan v. Cosden, 249 So. 3d 683 (Fla. 2d DCA 2018) (slip op. at 6).

Then it named what was actually going on, in a sentence worth quoting to any beneficiary who is sure this is easy.

“In essence, the beneficiaries simply prefer a different course of action than that chosen by the Settlor: they want their money now.”

Horgan v. Cosden, slip op. at 7.

And it closed a gap that petitioners often try to walk through.

“The fact that the Trust does not contain an express provision prohibiting early termination does not mean that the Settlor did not express her intent.”

“Many settlors choose to not provide a beneficiary with a lump sum distribution and may not want to spell out the reasons in a trust document.”

Horgan v. Cosden, slip op. at 7.

The holding covered both doors at once.

“Based on the undisputed circumstances, as a matter of law, neither section 736.04113 nor section 736.04115 supports the termination of the Trust.”

Horgan v. Cosden, slip op. at 7.

Read the case as a warning about the shape of the argument, not about the merits of anyone’s situation. Trustees’ fees that are customary, administration expenses that are ordinary, and markets that fluctuate are not unanticipated circumstances. They are the normal conditions of having a trust, and a settlor who created one is presumed to have known about them.

The Clause That Blocks a Judge

In 2012 the Third District decided a case that every planning lawyer should know and almost no client has been told about.

A settlor created a trust naming himself, a corporate trustee, and four individuals as cotrustees. One paragraph required that there always be a corporate trustee after he stopped serving. Another paragraph, to the extent permitted by law, prohibited a court from modifying the trust agreement under the best-interests provision then in force. After he died, his adult daughters and the corporate trustee agreed to let the corporate trustee resign and be replaced with a custodian, and they petitioned the court to approve it. His widow, also a cotrustee, objected.

The trial court approved the arrangement, finding it in the beneficiaries’ best interests and that the purpose of having a corporate trustee was no longer served because the trust was substantially administered. The Third District reversed and put the corporate trustee back, on two grounds. The anti-modification clause barred judicial modification even where a change would be in the beneficiaries’ best interests, and the evidence did not support the finding that the trust had been substantially administered, because more than routine, ministerial functions remained.

We describe that decision rather than quoting it, for a reason worth stating. The publicly available text of the opinion we could retrieve carries scanning damage in exactly the passages that matter, including the trust paragraph itself. Rather than reproduce a mangled quotation, we report the holding as the Second District later described it in the 2014 case discussed below, whose account is clean.

Why this matters to you. If you are drafting, an anti-modification clause is a real lever and it should be a conscious choice rather than an omission. If you are holding a trust somebody else drafted, go look. It is usually near the end, in the administrative provisions nobody reads, and finding it takes two minutes. Its presence or absence can decide whether a petition is worth filing at all.

The Common Law Back Door

Now subsection (4), which most summaries of this statute skip, and which decided a 2014 case.

A woman was the grantor of an irrevocable trust her father had prepared for her, funded first with gifts he had made to her and later with assets from his own residual trust. It said it was irrevocable and not subject to amendment. In 2012 she petitioned to terminate it. Her three children, the remainder beneficiaries, agreed. Her brother, the cotrustee, objected, arguing she might dissipate the assets and that the trust’s purposes remained unfulfilled under the statute.

The trial court terminated the trust anyway, relying not on the statute but on a Florida common law rule from a 1974 decision, which the court had summarized this way.

“[t]he terms of a trust may be modified if the settlor and all the beneficiaries consent. Having the power to terminate, they obviously have the power to create a new trust or to modify or change the old.”

Preston v. City National Bank of Miami, 294 So. 2d 11, 14 (Fla. 3d DCA 1974), quoted in Peck v. Peck, 133 So. 3d 587 (Fla. 2d DCA 2014).

The Second District affirmed.

“The trial court correctly relied on Preston. Pursuant to subsection (4), section 736.04113 does not abrogate the common law. Accordingly, termination of the CLP Trust was not improper.”

Peck v. Peck, 133 So. 3d 587 (Fla. 2d DCA 2014).

So there are effectively two systems running side by side. The statutory route asks about the trust’s purposes and can work without the settlor. The common law route ignores the purposes entirely if the settlor and all the beneficiaries consent, and an irrevocable trust whose purposes are plainly unfulfilled can still be terminated that way.

The limits are equally important. The common law route needs the settlor, which usually means it is available only while the person who created the trust is alive and cooperative. It needs all the beneficiaries, and a minor or unborn beneficiary who cannot consent can stop it. And the court in that case pointed out that a settlor who wants to prevent this can generally structure the trust so that it cannot be undone this way, which is another drafting decision most people are never offered.

One nuance in that case is worth carrying. The person who could consent as settlor was the daughter, not the father whose money largely funded the trust, because the document made her the grantor. Who the settlor is on paper is not always who paid for it, and it decides who has to sign.

Why the Settlor’s Intent Decides

Line the five cases up and they collapse into one question. Not whether the beneficiaries would prefer something else. Not whether the trust has become annoying or expensive. What did the person who created it mean, and would the change defeat it?

The Second District put the method plainly, quoting its own earlier decision. A court determines the settlor’s intent from the plain and ordinary meaning of the terms set forth in the trust instrument. Extrinsic evidence comes in under subsection (3)(a), but it comes in around a document that is read first.

That has three consequences you can act on.

• The document is the case. Before anyone forms a view about likelihood, somebody should read the trust and every amendment straight through, including the administrative provisions. The anti-modification clause, the spendthrift clause, the distribution pattern, and whether the settlor ever made a lump sum distribution to anybody are each capable of deciding the outcome.
• Silence is not permission. The 2018 court said it directly. The absence of a clause prohibiting early termination does not mean the settlor failed to express her intent. Arguments built on what a trust does not say tend to lose.
• The people who were there are evidence. The drafting lawyer, the accountant, the family members present at signing. In the 2013 case the fact that the drafting lawyer had never discussed adult adoptions with the settlor is what sent the case back for trial. That evidence gets harder to gather every year.

And the necessary caution. These are published decisions in other families’ cases, not matters this firm handled, and none of them predicts an outcome in yours. They show what particular courts did on particular records.

What to Do if You Want a Trust Changed

Court is the expensive door, and it is often not the first one. Here are the alternatives in rough order of cost.

• Read the trust for a built-in fix. Many trusts contain powers nobody has exercised, including a trust protector, a power of appointment, a trustee power to distribute principal outright, or an amendment power that survived in a limited form. The change you want may already be authorized.
• Decanting. Under a separate section of the Trust Code, a trustee with discretion over principal can often move the assets into a new trust with better terms, without a judge. It is faster and private. See Florida trust decanting.
• Nonjudicial modification. In some situations the interested parties can agree in writing without a court. Whether it is available depends on who the parties are and what is being changed.
• The common law consent route, if the settlor is alive and willing and every beneficiary can consent.
• A petition under 736.04113 or 736.04115, when none of the above fits, when the change needs the force of a court order, or when somebody is going to object regardless.

If the trust is still revocable, none of this applies and the answer is much simpler; see how a Florida revocable trust gets amended and our page on amendment versus restatement. If what you actually want is out of the trustee rather than out of the trust, the relevant pages are removing a trustee and the duty to inform and account.

Modification work is quoted after we have read the documents, because what it takes depends entirely on what they say and who is going to object. The consult is a free 30 minutes, and there is no charge for hearing that the trust says what it says and the honest answer is to leave it alone. Book a free consult →

Frequently Asked Questions

Common Situations

The trust that outlived its reason. A trust created in the 1990s holds a small brokerage account and pays a beneficiary a few hundred dollars a year, while the trustee’s fees and tax preparation eat much of it. That is the strongest version of the fulfilled-or-wasteful ground, and it is also the version most likely to be solved without a courtroom, because a trustee with the right powers may be able to distribute or decant it out of existence in a fraction of the time.

The siblings who want to cash out. Three adult children are the only beneficiaries of a trust their mother left, and all three want it ended now rather than in staged distributions. They assume unanimity is enough. On the statutory route it is not, and the 2018 decision above is almost exactly this case. The honest first conversation is about whether their mother is alive to consent, whether anyone unborn or under age has an interest, and what the document says about why she staged it.

The divorce where a trust holds the house. A spouse wants a marital home pulled out of an irrevocable trust so it can be divided. The 2016 case says the family court cannot simply modify the trust to get there, and that the request has to come from a trustee or a qualified beneficiary in the first instance. That is a reason to bring trust counsel into the matter early rather than after an order has been entered and appealed.

Sources of Law

• Fla. Stat. §736.04113 (judicial modification of irrevocable trust when modification is not inconsistent with settlor’s purpose: subsection (1) standing and the three grounds; subsection (2) the four remedies including termination in whole or in part; subsection (3) what the court considers, including spendthrift provisions as a factor that does not preclude modification; subsection (4) preserving common law rights). Official text, Online Sunshine. Predecessor: Fla. Stat. §737.4031, repealed with the adoption of the Florida Trust Code. (retrieved 2026-08-13)
• Fla. Stat. §736.04115 (judicial modification when modification is in the best interests of the beneficiaries, available without regard to the reasons in §736.04113, with the court still required to exercise discretion in a manner conforming to the settlor’s intent). (retrieved 2026-08-13)
• Horgan v. Cosden, 249 So. 3d 683 (Fla. 2d DCA May 25, 2018) (No. 2D17-1354); reversed and remanded with directions to enter summary judgment denying termination. Quoted above at slip op. 6 and 7, from the official Second District slip opinion PDF; CourtListener mirror. Pin cites are slip opinion pages, since the slip carries no reporter pagination. Construes §736.04113 and §736.04115 together. (retrieved 2026-08-13)
• Nelson v. Nelson, 206 So. 3d 818 (Fla. 2d DCA Dec. 16, 2016) (No. 2D15-4585). Quoted above at slip op. 4, from the official Second District slip opinion PDF; CourtListener mirror. Reading note: the sentence in which this opinion states its ultimate conclusion contains an em dash in the court’s own text. Rather than alter a court’s punctuation to fit this site’s style, we do not quote that sentence at all and carry the holding through two other sentences on the same page. (retrieved 2026-08-13)
• Peck v. Peck, 133 So. 3d 587 (Fla. 2d DCA Feb. 26, 2014) (No. 2D13-1069); affirmed. Quoted above for its holding on subsection (4) and for its quotation of Preston v. City National Bank of Miami, 294 So. 2d 11, 14 (Fla. 3d DCA 1974). CourtListener. Source caveat: no official slip opinion PDF was retrievable, so the text is a reporter-derived rendering that carries visible scanning damage elsewhere in the opinion, including a garbled statute number and hyphenated words broken across lines. The passages quoted here are free of it, and no sentence containing that damage is reproduced or characterized as the court’s error, because a scanning artifact cannot be distinguished from a court’s own slip without the official file. (retrieved 2026-08-13)
• Dennis v. Kline, 120 So. 3d 11 (Fla. 4th DCA June 19, 2013); summary judgment reversed and remanded. Described, not quoted, on this page for its holding that the settlor’s intent is the fact issue controlling a §736.04113(1)(b) claim and that whether an adult adoption substantially impaired a material purpose was inappropriate for summary judgment. CourtListener. Source caveat: reporter-derived text with scanning artifacts in the relevant passages, including a hyphenated party term and a subsection citation rendered with a lowercase letter in place of a numeral; we describe the holding in our own words rather than quote it. (retrieved 2026-08-13)
• Bellamy v. Langfitt, 86 So. 3d 1170 (Fla. 3d DCA Apr. 25, 2012); reversed. Described, never quoted. CourtListener. Source caveat and method: the retrievable text of this opinion contains typographic dashes that this site’s build forbids in rendered pages, and the trust paragraph at the center of the holding is garbled in that rendering. Rather than reproduce a damaged quotation or silently repunctuate a court, we report the holding as the Second District described it in Peck, whose account is clean, and we say so here. The decision was issued under the predecessor statute, Fla. Stat. §737.4031(2), whose paragraph (2)(c)(2) made the best-interests modification route inapplicable where the trust’s terms expressly prohibited judicial modification. (retrieved 2026-08-13)
• Related sections: Fla. Stat. §736.04117 (trustee’s power to invade principal in trust, commonly called decanting, the nonjudicial alternative discussed above); §736.0412 (nonjudicial modification of an irrevocable trust). We located no Florida appellate decision construing §736.0412. (retrieved 2026-08-13)
• Quotation note: the passages above reproduce the courts’ own published words and the Legislature’s own statutory text, taken from official slip opinion files where those were retrievable. Court opinions and statutes are public records, and nothing here is drawn from a commercial research service or from any editorial layer such as a headnote or case summary. No citator pass was run on these decisions, so the absence of a negative treatment note is not a clean bill of health.
• The decisions on this page are published rulings in other parties’ cases, not matters handled by this firm. Outcomes depend on the specific trust language, the settlor’s documented intent, and the record in each case, and nothing here predicts a result or promises that any particular trust can or cannot be changed.

Updated on August 13, 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. Whether a particular trust can be modified depends on its own terms, who is asking, and what the record shows about the settlor’s intent, which we review at a free consult. Please do not send confidential details until we have connected.