What Decanting Actually Is
A trustee holding a power to invade the principal of a trust can, instead of distributing the money outright, appoint it into a new trust with different terms. The old trust is the first trust, the new one is the second, and the image behind the name is pouring wine from one bottle into another and leaving the sediment behind.
It is a genuinely useful tool. Trusts drafted decades ago contain tax provisions that no longer make sense, administrative machinery nobody wants, or distribution ages that have not aged well. Decanting fixes some of that without a court proceeding and without the settlor, who is usually no longer available to ask.
Florida authorises it in section 736.04117, and how far the power reaches depends on whether the trustee has what the statute calls an absolute power to invade, meaning one not limited to ascertainable purposes such as health, education, maintenance and support.
The Two Limits the Only Florida Case Enforced
In 2015 Florida’s Fifth District reviewed a decanting and set it aside. The trustee had moved a beneficiary’s trust assets into a pooled special needs arrangement. Two things were wrong with it, and either would have been enough.
He did not give the notice. The court was direct about the requirement.
Here, section 736.04117(4) plainly and unambiguously requires a trustee to provide notice to "all qualified beneficiaries" of his intent to invade the principal of a trust at least 60 days prior to the invasion.
Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA 2015).
And the new trust benefited people the old one never did. The statute limits a decanting to a second trust whose beneficiaries include only beneficiaries of the first. Here the second trust gave a contingent remainder interest to beneficiaries of other sub-accounts in the pooled arrangement, who had no connection to the original trust at all. The court held that violated the section.
The result was reversal, a remand for an evidentiary hearing on the value to be restored to the trust, and removal of the trustee if the assets came back. The court also recorded what it called his numerous breaches of fiduciary duty.
A Case of First Impression, and What That Means for You
The court said so in terms.
The instant application of section 736.04117, enacted in 2007, is a case of first impression.
Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA 2015).
That was 2015, and as of this review it is still the only Florida decision we located construing the section. For a provision that has been in force since 2007 and is used regularly by trust practitioners, that is remarkable, and it tells you something about decanting. It is mostly done quietly and correctly, and reaches a court only when it goes badly wrong.
It also means that if your question is not about notice or about adding beneficiaries, there is no Florida appellate authority answering it.
The Statute Has Been Rewritten Twice Since
This is the part that catches people, including people who cite the case.
The section was substantially restructured in 2018 and amended again in 2025. It now runs to eleven captioned subsections, covering definitions, decanting where the trustee has an absolute power, decanting where it does not, supplemental needs trusts, prohibited distributions, exercise by writing, restrictions, notice, spendthrift clauses, the absence of any duty to decant, and the preservation of common law rights.
Both of the 2015 decision’s holdings survive. Neither of its subsection numbers does.
The 60 day notice requirement the court cited as subsection (4) is now subsection (8). Subsection (4) today is about distributions to a supplemental needs trust. So a brief citing section 736.04117(4) for a notice obligation is citing the wrong provision.
The rule that the second trust may benefit only beneficiaries of the first, which the court cited from subsection (1)(a), now appears at subsection (2)(a)1. for a trustee with absolute power, and again at (4)(a)2. for supplemental needs trusts. The current text also adds a requirement the 2008 version did not contain. The second trust must not reduce any vested interest.
What Notice Requires Now
Under the current subsection (8), the authorised trustee must give written notification of the manner in which the power will be exercised, at least 60 days before the effective date, to four categories of person, namely all qualified beneficiaries of the first trust, all trustees of the first trust, anyone with power to remove or replace the authorised trustee, and, where the prohibited distributions provision applies, the settlor of the first trust.
The obligation is satisfied by providing copies of three documents, namely the proposed instrument exercising the power, the first trust instrument, and the proposed second trust instrument. So the recipients see the whole picture rather than a summary.
The period can be waived. If everyone entitled to notice signs a written waiver delivered to the trustee, the power becomes exercisable immediately. And the statute says the notice is not a trust disclosure document for limitations purposes, and does not limit a beneficiary’s right to object.
That last point matters to a beneficiary who receives one of these. Getting notice is not the same as being bound, and the 60 days is the window in which to take advice.
What Is Still Undecided
On August 13, 2026 we searched Florida state and federal decisions for this section number, restricted to Florida courts, and found one case. It is the 2015 decision above.
So nearly twenty years after the section was enacted, and after two rewrites, Florida has a single appellate decision on it, and that decision construed a version of the statute that no longer exists. Its two holdings are about the most basic requirements, notice and who may benefit.
Everything else in the section is untested in Florida’s appellate courts, including what counts as an absolute power in a marginal case, what reducing a vested interest means, how the restrictions in subsection (7) operate, and what happens when a decanting is defective but nobody objects within the notice period.
A section-number search does not find decisions that discuss a provision without naming it, and we have not run a citator pass, so this is a careful review on a stated date rather than a guarantee.
Frequently Asked Questions
What Is Decanting a Trust in Florida?
Decanting is a trustee exercising a power to invade the principal of an existing trust, called the first trust, by appointing that principal in favour of a new trust with different terms, called the second trust. The image is pouring wine from one bottle to another. It lets a trustee fix a defective or outdated trust without a court proceeding and without the settlor, who is often dead. Florida authorises it in section 736.04117, and the scope of the power depends on whether the trustee has what the statute calls an absolute power to invade.
Can a Trustee Add New Beneficiaries by Decanting?
No. The statute is explicit that the beneficiaries of the second trust must include only beneficiaries of the first trust. That is the single most important limit and it is where the only Florida decision on the section found a trustee had gone wrong. In that case the trustee moved assets into a pooled arrangement whose remainder beneficiaries included people who had never been beneficiaries of the original trust, and the court held the decanting invalid on that ground. The current statute also adds a requirement the older version did not have. The second trust must not reduce any vested interest.
Does a Trustee Have to Give Notice Before Decanting?
Yes, sixty days written notice, and the requirement is broader now than when Florida s only decision on the section was decided. The current statute requires the authorised trustee to give written notification of the manner in which the power will be exercised, at least 60 days before the effective date, to all qualified beneficiaries of the first trust, to all trustees of the first trust, to anyone with power to remove or replace the authorised trustee, and in some circumstances to the settlor. Notice is satisfied by providing the proposed instrument exercising the power together with both trust instruments. Everyone entitled to notice can waive the period in writing, which makes the power exercisable immediately.
What Happens if the Trustee Skips the Notice?
In the one Florida case, the decanting was invalidated. The Fifth District held the statute plainly and unambiguously requires the trustee to notify all qualified beneficiaries at least 60 days before invading the principal, and the failure to do so was one of two independent grounds for reversing. The court also noted the trustee s numerous breaches of fiduciary duty and remanded for an evidentiary hearing on the value to be restored to the trust, with the trustee removed if assets were restored.
Is the Case Law on Florida Decanting Reliable Today?
It has to be used carefully, and this is the main thing this page exists to tell you. The only Florida decision construing the section was decided in 2015 and applied the 2008 version of the statute. The section was substantially rewritten in 2018 and amended again in 2025. Both of the holdings survive in substance, but the subsection numbers the court used no longer point at the same provisions. The 60 day notice requirement the court cited as subsection (4) is now subsection (8), and subsection (4) today deals with distributions to a supplemental needs trust. Anyone citing the case needs to translate.
Can Decanting Be Used for a Special Needs Beneficiary?
The current statute has a subsection specifically about it. Where the trustee has power to invade principal for the benefit of a beneficiary with a disability, the trustee may instead exercise that power by modifying the first trust or appointing principal to a supplemental needs trust, if the supplemental needs trust benefits that beneficiary, the beneficiaries of the second trust include only beneficiaries of the first, and the trustee determines the exercise will further the purposes of the first trust. That is a useful route, and it is also close to the facts of the one Florida case, where a decanting into a pooled special needs arrangement failed because of who else was made a beneficiary.
Does a Spendthrift Clause Stop a Decanting?
The statute addresses it directly, in a subsection headed inapplicability of spendthrift clause or other prohibition. So a spendthrift provision in the first trust is not by itself an answer to a proposed decanting. That said, the trust instrument can expressly provide otherwise, and both of the main decanting subsections open with the words unless the trust instrument expressly provides otherwise. So the first question in any decanting analysis is always what the document itself says about it.
Common Situations
The trustee who wants to fix an old trust. A family trust from the 1980s distributes outright at 25 and the beneficiary is 24 and in difficulty. Decanting into a trust with a later age or a discretionary standard is exactly what the section is for. The two things to get right before anything is signed are the notice list and the beneficiary limit.
The beneficiary who just received a notice. A letter arrives enclosing two trust instruments and a proposed exercise. That is the 60 day clock starting. The statute expressly preserves the right to object, and 60 days is enough time to have the documents read properly, which is a great deal cheaper than unwinding a completed decanting later.
The pooled special needs arrangement. A trustee proposes moving a disabled beneficiary’s share into a pooled trust. The current statute has a subsection specifically permitting that, but the beneficiary limit still applies, and it is precisely where the only Florida case found a trustee had gone wrong.
Sources of Law
- Fla. Stat. §736.04117 (trustee’s power to invade principal, commonly called decanting). Official text, Online Sunshine. History: s. 2, ch. 2007-153; s. 5, ch. 2018-35; s. 1, ch. 2025-159. The section was substantially restructured in 2018 and amended again in 2025, and now runs to eleven captioned subsections. All statutory descriptions on this page are taken from the current official text. (retrieved 2026-08-13)
- Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA July 24, 2015), Nos. 5D14-1145 and 5D14-3469, Wallis, J., with Orfinger and Lambert, JJ.; issued on motion for clarification, substituting a withdrawn opinion; rehearing denied August 11, 2015. Quoted above for the notice requirement and for the statement that the application of the section was a case of first impression. ★ Version note, and it is the reason this page spends time on it: the court construed the 2008 text. Both of its holdings survive, but the notice requirement it cited as subsection (4) is now subsection (8), and the beneficiary limitation it cited from subsection (1)(a) is now subsection (2)(a)1. Source caveat: the online rendering of this opinion reproduces the statute with a lowercase letter l in place of the numeral 1 in several subsection citations, and its block quotation of the statute omits two entire subsections behind an image placeholder. Those are extraction artifacts rather than the court’s errors, so they carry no [sic], and no statutory text on this page is taken from that block quote. One sentence of the opinion contrasting the two trusts contains long dashes and is not quoted. Source: CourtListener. The same decision’s attorney’s fee holding is discussed on our §736.1004 page. (retrieved 2026-08-13)
- Related sections from the same official source: §736.0814 (discretionary powers, and the good faith floor on any discretion however broadly expressed); §736.1008 (limitations on proceedings against trustees, referred to in the notice subsection). (retrieved 2026-08-13)
- Gap note, stated for the record: a search of Florida state and federal decisions for this section number, restricted to Florida courts, returned one case on August 13, 2026, and that decision construed a version of the statute that has since been rewritten twice. We located no Florida decision construing the current text. A section-number search does not find decisions that discuss a provision without naming it, and no citator pass was run.
- Quotation note: the passages above reproduce a Florida court’s own published words and the Legislature’s own statutory text. Nothing is drawn from a headnote, case summary, or other editorial layer of a commercial research service.
- Nothing on this page predicts a result. Whether a particular decanting is authorised depends on the trust instrument, the nature of the power, and compliance with the current statute.
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 proposed decanting is authorised depends on the trust, the power, and who must be notified, which we review at a free consult. Please do not send confidential details until we have connected.
