What Section 736.0502 Says
The section is four subsections long and each one does a separate job. Here it is in full, from the Legislature's own text.
(1) A spendthrift provision is valid only if the provision restrains both voluntary and involuntary transfer of a beneficiary's interest. This subsection does not apply to any trust the terms of which are included in an instrument executed before the effective date of this code.
(2) A term of a trust providing that the interest of a beneficiary is held subject to a spendthrift trust, or words of similar import, is sufficient to restrain both voluntary and involuntary transfer of the beneficiary's interest.
(3) A beneficiary may not transfer an interest in a trust in violation of a valid spendthrift provision and, except as otherwise provided in this part, a creditor or assignee of the beneficiary may not reach the interest or a distribution by the trustee before receipt of the interest or distribution by the beneficiary.
(4) A valid spendthrift provision does not prevent the appointment of interests through the exercise of a power of appointment.
Subsection (1) is the test. Subsection (2) is the safe harbour that satisfies it. Subsection (3) is the protection you get. Subsection (4) is a limit on that protection. The sentence people miss is the second one in subsection (1), and the rest of this page is largely about it.
The $350,000 Loan and the Constitutional Challenge
In 2013 Florida's Fifth District decided a case that started as an ordinary loan. Two lenders advanced $350,000 to a company. Its principal signed a personal guaranty and represented that he had $6,850,278.53 available to him in a trust. The company defaulted, the guaranty was called, and the trustee, Wells Fargo, declined to distribute anything, because the trust contained a spendthrift provision.
Having nothing else to aim at, the lenders sued the trustee and asked the court to declare that sections 736.0501 through .0507 violate article I of the Florida Constitution. The court explained why that argument runs the wrong way historically.
the creditor-protection provisions of a properly drafted spendthrift trust were recognized as legally valid (and effective to protect trust assets against judgment or other creditors) at common law, long before the adoption of sections 736.0501-.0507.
In other words the statutes did not take a remedy away from creditors, because creditors never had one. The court also drew a line that is worth carrying into any collection fight.
Article I, section 21 guarantees access to courts, i.e., "the avoidance of significant impediments to the filing of nonfrivolous legal claims[.]" It does not guarantee the ability to enforce a judgment.
The summary judgment for the trustee was affirmed. If you are a creditor looking at a spendthrift trust, this is the case that closes the constitutional route, and the practical lesson sits earlier in the story. The representation about $6,850,278.53 was made before the loan, and the spendthrift clause was in the trust the whole time.
Why It Must Restrain Both Kinds of Transfer
Subsection (1) requires a clause to restrain both voluntary and involuntary transfer. Voluntary transfer means the beneficiary handing the interest to someone else, by sale, assignment or pledge. Involuntary transfer means a creditor taking it. A clause that forbids the beneficiary from assigning the interest but is silent about creditors does not meet the test as written.
That two-part requirement was new enough to be flagged at the time. A drafter of the Florida Trust Code, writing in the Florida Bar Journal in 2006 before the code took effect, described subsection (1) this way in a footnote.
Fla. Stat. §736.0502(1). This requirement may be a departure from current law. As such, it applies only to trusts created after the effective date of the Code.
That is a drafter saying, in the same breath, that the rule may be new and that it therefore does not reach backwards. The Legislature wrote the same limit into the statute itself, and a court has since applied it.
The July 1, 2007 Line, and Why Your Trust Date Matters
The Florida Trust Code took effect on July 1, 2007. Subsection (1) does not apply to any trust the terms of which are included in an instrument executed before that date.
In 2010 a bankruptcy judge in the Northern District of Florida ran straight into that sentence. The debtor's trust had been signed in 2000, and whether its spendthrift clause was valid decided whether the trust was reachable in bankruptcy. The court set out the framework.
The Florida Trust Code ("Trust Code"), Chapter 736, Florida Statutes (2009), which became effective on July 1, 2007, provides a definition for a "spendthrift provision" in section 736.0103(17) and a standard for the validity of a "spendthrift provision" in a trust in section 736.0502(1).
The Trust Code provides that a spendthrift provision is "valid only if the provision restrains both voluntary and involuntary transfer of a beneficiary's interest." Id.
One note for anyone checking that citation. The court was quoting the 2009 statutes, where the definition of a spendthrift provision sat at section 736.0103(17). It is subsection (22) today. The definitions section has been amended five times since 2006 and the numbering has drifted, so a reader following the court’s subsection into the current statute lands somewhere else. The court was right when it wrote it, and the definition itself is unchanged in substance, being a term of a trust that restrains both voluntary and involuntary transfer of a beneficiary’s interest.
Then it applied the carve-out and stepped out of the statute.
The Trust Code's spendthrift provisions, however, explicitly do not apply "to any trust the terms of which are included in an instrument executed before the effective date of this code." Id.
Since the Trust instrument was executed in the year 2000, I must look to pre-Trust Code law to determine the validity of the spendthrift provision.
The clause survived, but under older Florida case law rather than under section 736.0502. Two things follow for a reader holding a trust from before July 2007. The validity of your spendthrift clause is not governed by this subsection, and the law that does govern it is a body of decisions rather than a sentence you can read off the page.
This decision is a federal bankruptcy court applying Florida law. That makes it persuasive rather than binding on a Florida state court, and we have found no Florida appellate decision doing the same analysis.
One more wrinkle worth knowing if you are close to the line. The carve-out has not always read the way it reads now. As originally enacted in 2006 it excluded any trust in existence on the effective date; the Legislature changed that in 2007 to any trust whose terms are in an instrument executed before the effective date. For a trust signed in the spring of 2007 those two tests are not the same question, and the current one asks when the document was signed.
What a Valid Clause Actually Protects
Subsection (3) is the payoff, and it has a hard edge. A creditor may not reach the interest, or a distribution by the trustee, before receipt by the beneficiary. Once the beneficiary has the money, the protection is spent. The Fifth District put the same idea in general terms.
A valid spendthrift provision prevents a beneficiary from transferring his or her interest in the trust as well as prevents creditors or assignees of the beneficiary from reaching any of the trust funds until they are dispersed to the beneficiary.
A bankruptcy court in the Southern District of Florida made the same point in a footnote it described as immaterial to its decision, and the fact that it went out of its way to say it tells you how often the question comes up. Money in the trust is protected. Money in the beneficiary's account is money.
Two exceptions sit elsewhere in the same part of the code and both are large enough to matter. A spendthrift clause is unenforceable against a child, spouse or former spouse holding a support order, which is Fla. Stat. 736.0503. And a creditor may reach a mandatory distribution the trustee has not made within a reasonable time after the designated date, spendthrift clause or not, which is section 736.0506. If the trustee has discretion rather than an obligation, the governing section is Fla. Stat. 736.0504, and it is considerably less friendly to creditors.
The Words You Need, and the Ones You Do Not
Subsection (2) is short and it removes most of the drafting risk. A term providing that the beneficiary's interest is held subject to a spendthrift trust, or words of similar import, is sufficient to restrain both kinds of transfer. The same Bar Journal drafter put it this way.
No special language is necessary to create a spendthrift trust. A trust term to the effect that beneficial interests are subject to a spendthrift trust or words of similar import is sufficient to do the trick. §736.0502(2).
So the statutory floor is low. The practical point is different. Subsection (2) tells you what is sufficient, not what is wise. A clause drafted for a family with a beneficiary in a risky profession, a pending divorce, or a business that borrows is doing work that a single borrowed sentence does not.
And subsection (4) sets the outer limit. A valid spendthrift provision does not prevent the appointment of interests through the exercise of a power of appointment. If the trust hands someone a power to appoint, the spendthrift clause does not veto it.
What Florida Courts Have Not Decided
This series exists to tell you what courts have actually done, which means being straight about what they have not.
On August 13, 2026 we searched Florida and federal decisions for the section number and found four Florida decisions that cite section 736.0502. One construes subsection (1), and it construes its reach rather than its content. That is the bankruptcy decision above, holding the subsection does not apply to a trust executed in 2000. The other three go to subsection (3), the protection, or cite the section in passing.
We located no decision, state or federal, deciding whether particular trust language satisfies the both-kinds-of-transfer requirement for an instrument executed after July 1, 2007. On the face of it that question is open. That is our own review on a stated date and by a stated method, not a guarantee, and a decision could exist that our search did not surface or could issue tomorrow.
What it means for you is narrow and useful. If your trust postdates July 2007 and its spendthrift clause is worded conventionally, subsection (2) is designed to make it work. If the clause is unusual, restricts only one kind of transfer, or was assembled from a form, no appellate decision yet tells you how a Florida court will treat it.
Frequently Asked Questions
What Makes a Spendthrift Provision Valid in Florida?
Section 736.0502(1) sets one test. The provision is valid only if it restrains both voluntary and involuntary transfer of the beneficiary's interest. Voluntary transfer is the beneficiary selling, assigning or pledging the interest. Involuntary transfer is a creditor taking it. A clause that blocks one and not the other does not satisfy the subsection. The Legislature then made compliance easy in subsection (2). A trust term saying the beneficiary's interest is held subject to a spendthrift trust, or words of similar import, is enough to restrain both. So the drafting is simple, and the mistake to avoid is a clause that carefully forbids assignment and never mentions creditors.
Does Section 736.0502 Apply to a Trust Signed Before 2007?
The validity test in subsection (1) does not. The subsection ends by saying it does not apply to any trust the terms of which are included in an instrument executed before the effective date of the code, and the Florida Trust Code took effect on July 1, 2007. That is not a technicality. A bankruptcy judge sitting in the Northern District of Florida faced a trust signed in 2000 and concluded he had to look to pre-Trust-Code law to decide whether its spendthrift provision was valid, which took him back to Florida decisions from an earlier era. If your trust was signed before July 2007, the question of whether its clause works is answered by older case law, not by this subsection. That is a conversation worth having with counsel rather than assuming either way.
Can a Creditor Reach a Florida Spendthrift Trust?
Not the interest itself while the money is still in the trust, if the clause is valid. Subsection (3) says a beneficiary may not transfer an interest in violation of a valid spendthrift provision, and that a creditor or assignee may not reach the interest or a distribution before the beneficiary receives it. The phrase to read closely is before receipt. Once a distribution lands in the beneficiary's hands it is ordinary money and ordinary collection applies. There are also exceptions inside the same part of the code, and they matter. Fla. Stat. 736.0503 makes a spendthrift clause unenforceable against a child, spouse or former spouse holding a support order, and section 736.0506 lets a creditor reach a mandatory distribution the trustee has failed to make within a reasonable time.
Are Florida Spendthrift Trusts Constitutional?
Yes, and the question has been litigated. In 2013 Florida's Fifth District heard creditors argue that sections 736.0501 through .0507 violate article I of the Florida Constitution. The court rejected it, reasoning that the creditor-protection effect of a properly drafted spendthrift trust was recognised at common law long before those sections were adopted, so the statutes did not take away a right that creditors previously had. The court also drew a distinction worth remembering on both sides of a collection fight. The constitutional guarantee of access to courts concerns the filing of nonfrivolous claims, not the ability to enforce a judgment once you have one.
What Words Create a Spendthrift Trust in Florida?
Fewer than most people expect. Subsection (2) provides that a term stating the beneficiary's interest is held subject to a spendthrift trust, or words of similar import, is sufficient to restrain both voluntary and involuntary transfer. A drafter of the Florida Trust Code put it plainly in the Florida Bar Journal before the code took effect, writing that no special language is necessary to create a spendthrift trust. That said, the statute sets a floor and not a ceiling, and a clause written for a specific family with specific creditors on the horizon is doing more work than a boilerplate sentence. If you are reading a trust someone else drafted, the sentence to find is the one that mentions both the beneficiary transferring and creditors reaching.
Does a Spendthrift Clause Stop a Power of Appointment?
No. Subsection (4) says a valid spendthrift provision does not prevent the appointment of interests through the exercise of a power of appointment. That is a narrow point with practical consequences in family trusts, because it means the spendthrift clause is not a lock on who ultimately takes. If a trust gives someone a power to appoint interests, the spendthrift language does not override it, and the two provisions have to be read together rather than assuming the protective clause wins.
Has a Florida Court Decided Whether My Clause Is Valid?
On the specific question of whether particular trust language satisfies the both-kinds-of-transfer test for a trust signed after July 2007, we located no decision, state or federal, as of August 13, 2026. That is our own review and not a certainty. What has been decided is the reach of the subsection rather than its content. A federal bankruptcy court in Florida applied the pre-2007 carve-out and went to older Florida law for a trust executed in 2000. A federal court reading Florida law is persuasive rather than binding on a Florida state court. If your clause is unusual, the honest answer is that the appellate law does not yet tell you, and that is worth knowing before you rely on it.
Common Situations
The trust from 1998. A daughter in Sarasota is trustee of a trust her father signed in the late nineties, and a creditor of her brother has started asking questions. She reads section 736.0502, sees the two-part test, and worries the old clause does not match it. The subsection does not apply to her father's trust at all. Whether that clause works is decided by Florida law as it stood before the code, which is a different and answerable question, and the answer is often yes.
The guaranty nobody read twice. A lender takes a personal guaranty from someone who mentions a large trust. The trust is real and the number is real, and the spendthrift clause makes it unreachable while it sits there. The time to find that out is before the money goes out, by asking for the trust language rather than the balance.
The form clause. A couple used an online trust and the spendthrift paragraph forbids the beneficiary from assigning or encumbering the interest, with nothing about creditors. Under subsection (1) that is the shape of clause the statute was written to catch. Whether a Florida court would read it as satisfying the section is, as far as we can find, undecided, and that uncertainty is itself the reason to fix the document rather than test it.
Sources of Law
- Fla. Stat. §736.0502 (spendthrift provision: subsection (1) validity test and the pre-code carve-out; subsection (2) the sufficient language; subsection (3) the protection and its limit at receipt; subsection (4) powers of appointment). Official text, Online Sunshine. History: s. 5, ch. 2006-217; s. 12, ch. 2007-153. (retrieved 2026-08-13)
- Laws of Florida, ch. 2006-217, s. 5 (as enacted, excluding any trust "in existence on" the effective date) and ch. 2007-153, s. 12 (amending subsection (1) to its present wording, excluding any trust whose terms are in an instrument "executed before" the effective date). The two session-law chapters were compared directly; the change described on this page is taken from the enrolled text, not from any secondary source. (retrieved 2026-08-13)
- Related sections from the same official source: §736.0503 (exceptions, including a child, spouse or former spouse with a support order); §736.0504 (discretionary trusts); §736.0506 (overdue mandatory distributions). (retrieved 2026-08-13)
- Zlatkiss v. All America Team Concepts, LLC, 125 So. 3d 953 (Fla. 5th DCA 2013), No. 5D12-3324; affirmed. Quoted above for the definition of a spendthrift trust's effect, the common-law point, and the access-to-courts distinction. Source caveat: the Fifth District retired its former opinion paths when it moved hosts, and no official slip opinion PDF for this 2013 decision was retrievable when this page was prepared, so the text is a reporter-derived rendering of the court's own words. Date caveat: the court's own former file path and a docket listing give a filing date of May 27, 2013, while CourtListener and other renderings show May 31, 2013, with no mention of a correction on any of them. Because that conflict is unresolved, this page cites the year only. (retrieved 2026-08-13)
- In re Ciano, 433 B.R. 431 (Bankr. N.D. Fla. Aug. 6, 2010), No. 10-30571-LMK, Killian, J. Quoted above for the framework and for the application of the pre-code carve-out to a trust executed in 2000. Reading note: this is a federal bankruptcy court applying Florida law, which is persuasive and not binding on a Florida state court. The court held the clause valid under pre-Trust-Code Florida law and therefore excluded from the bankruptcy estate. Source: CourtListener. (retrieved 2026-08-13)
- In re Rogove, 443 B.R. 182 (Bankr. S.D. Fla. Sept. 17, 2010), No. 09-24622, Kimball, J. Referred to above, deliberately without quotation. Its only reference to section 736.0502 is to subsection (3), in a footnote the court itself introduces by saying the argument "is not material to the Court's decision but is addressed here because it was raised by the Debtor." We therefore describe it in our own words and do not treat it as authority for what the section requires. Source: CourtListener. (retrieved 2026-08-13)
- Miller v. Kresser, 34 So. 3d 172 (Fla. 4th DCA 2010), which cites this section at 175 and is discussed in full, with the court's own language, on our §736.0504 page. (retrieved 2026-08-13)
- David F. Powell, The New Florida Trust Code, Part 1, 80 Fla. B.J. 7 (July/August 2006), at 24, quoted above for the description of subsection (1) as a possible departure from prior law and for the observation that no special language is necessary. The author was a drafter of the code and the article was published before it took effect. (retrieved 2026-08-13)
- Gap note, stated for the record: we located no decision, state or federal, deciding whether particular trust language satisfies the subsection (1) requirement for an instrument executed after July 1, 2007. The search was run on the section number across Florida state and federal decisions on August 13, 2026. A section-number search does not find decisions that discuss a provision without naming it, no citator pass was run, and the absence of a negative-treatment note is not a clean bill of health.
- Quotation note: the passages above reproduce the courts' own published words, the Legislature's own statutory and session-law text, and a signed bar journal article by a named author. Nothing here is drawn from a headnote, case summary, or any other editorial layer of a commercial research service.
- The decisions on this page are published rulings in other parties' cases, not matters handled by this firm. Outcomes depend on the trust language, the date the instrument was signed, and the facts of each case, and nothing here predicts a result.
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 spendthrift provision is valid depends on the trust's own words and the date the instrument was executed, which we review at a free consult. Please do not send confidential details until we have connected.
