How the mechanism works
After the settlor’s death, a trust may be modified at any time as provided in s. 736.04113(2) upon the unanimous agreement of the trustee and all qualified beneficiaries.
Section 736.0412(1), Florida Statutes.
Three conditions, all of them strict. The settlor must be dead, which makes this a post mortem tool and not a planning one. The agreement must be unanimous among the trustee and every qualified beneficiary, so a single holdout ends the discussion. And the modification must be in the manner provided by section 736.04113(2), which imports that statute’s constraints on what a modification may do.
Subsection (3) softens the unanimity requirement in the one way that makes it workable in practice. An agreement binds a beneficiary whose interest is represented by somebody else under part III of the Code, which is how minors, unborn beneficiaries and unascertained interests are handled. Without that provision, most trusts with remote remainder interests could never satisfy the section.
What it overrides
Modification of a trust as authorized in this section is not prohibited by a spendthrift clause or by a provision in the trust instrument that prohibits amendment or revocation of the trust.
Section 736.0412(2), Florida Statutes.
That is a considerable amount of power to hand to a private agreement. A settlor who wrote “this trust may not be amended” in capital letters has not stopped a section 736.0412 modification. Neither has a spendthrift clause, which elsewhere in the Trust Code is close to impregnable.
The exclusions do most of the work
Subsection (4) is where practitioners spend their time, because it removes categories rather than fine tuning them.
Any trust created before January 1, 2001 is outside the section entirely. Not restricted, not subject to conditions. Outside. A great deal of Florida trust property sits in instruments older than that.
Trusts created after December 31, 2000 are excluded where, under the terms of the trust, all beneficial interests must vest or terminate within the perpetuities period of section 689.225(2), unless the terms expressly authorize nonjudicial modification. The escape hatch is the last clause, and it is available only to drafters who thought about it in advance.
Charitable trusts are excluded, for any trust for which a charitable deduction is allowed or allowable, until all charitable interests in the trust terminate.
Subsection (5) closes an obvious gap by providing that a revocable trust is treated as created when the right of revocation terminates. Without it, the great majority of Florida revocable trusts signed decades ago would fall on the wrong side of the January 1, 2001 line at the moment they became irrevocable.
A provision the settlor cannot switch off
Florida trust law generally lets the settlor’s terms prevail over the Code’s default rules. Section 736.0105(2) lists the exceptions, and this statute is on the list. The Fourth District quoted the relevant paragraph in Minassian v. Rachins.
The terms of a trust prevail over any provision of this code except ... [t]he ability to modify a trust under s. 736.0412, except as provided in s. 736.0412(4)(b).
Section 736.0105(2)(k), Florida Statutes (2008), as quoted in Minassian v. Rachins, 152 So. 3d 719 (Fla. 4th DCA 2014).
Minassian is the closest thing this section has to a Florida decision, and it is worth understanding what it decided. The beneficiaries argued that sections 736.0410 through 736.04115 and section 736.0412 are the exclusive means of modifying a trust, so a trust protector could not hold a modification power. The Fourth District rejected the argument and upheld the trust protector’s amendments under section 736.0808(3). So the case tells you what this statute is not, namely a ceiling on private ordering, rather than telling you how it works from the inside.
One caution if you go looking for that provision. Section 736.0808 is no longer in the Florida Trust Code. The Legislature’s own site returns nothing for it today, and the chapter runs straight from section 736.0807 to section 736.0809. The court was citing it correctly when it wrote in 2014, and the case is unaffected, but the citation now leads nowhere. Chapter 2021-183 created a new Part XIV of the chapter, the Florida Uniform Directed Trust Act, beginning at section 736.1401, which is the Part now covering powers to direct a trustee. We have not traced the repeal itself to a particular session law, so we describe what we verified rather than asserting where the old subsection went.
Section 736.0412 was amended once, by chapter 2022-96, the session law that reworked Florida’s rule against perpetuities. Minassian was decided under the 2008 version.
One item we are flagging as unfinished rather than leaving out. A federal appellate decision, FPE Foundation v. Cohen, decided by the First Circuit in 2015, applies Florida’s section 736.0412. We have not read it, and we would ordinarily treat a court of appeals outside the Eleventh Circuit as a weak source for Florida law in any event. We mention it so that a reader who finds it knows we did not overlook it.