Deadlock, and the gap the statute leaves
Cotrustees who are unable to reach a unanimous decision may act by majority decision.
Section 736.0703(1), Florida Statutes.
That works cleanly with three or five trustees. It does nothing at all for two, which is the arrangement families actually create when they name two children. Two cotrustees who disagree have no majority available to them, and the statute offers no tiebreaker. What fills the gap is the trust instrument, if the drafter thought about it, and otherwise a court.
Two further provisions keep a trust running when a cotrustee is missing rather than opposed. Under subsection (2), if a vacancy occurs in a cotrusteeship the remaining cotrustees or a majority of them may act. Under subsection (4), where a cotrustee is unavailable through absence, illness, disqualification or other temporary incapacity and prompt action is necessary to achieve the purposes of the trust or to avoid injury to trust property, the remaining cotrustees may act. The second one is narrower than it first appears. Unavailability alone is not enough, and the urgency has to be there too.
The liability structure is the heart of the section
This is what people are usually trying to find out, and it takes three subsections read together.
Except as otherwise provided in subsection (7), a cotrustee who does not join in an action of another cotrustee is not liable for the action.
Section 736.0703(6), Florida Statutes.
Read alone, that looks like a complete answer, and it is not. The exception swallows a good deal of it.
Except as otherwise provided in s. 736.1412, relating to the allocation of powers among cotrustees, requirements for excluded cotrustees to act as a directed trustee, and liability and related obligations of directing cotrustees, each cotrustee shall exercise reasonable care to:
(a) Prevent a cotrustee from committing a breach of trust.
(b) Compel a cotrustee to redress a breach of trust.
Section 736.0703(7), Florida Statutes.
So the position is not that a passive cotrustee is safe. It is that a cotrustee is not liable for another’s action merely by not joining it, while separately owing an affirmative duty of reasonable care to stop a breach and to make the other trustee fix one. A cotrustee who saw what was happening and did nothing has not avoided the statute. They have engaged subsection (7).
Note also that subsection (7) is subject to section 736.1412, the directed trustee provision. Where a trust allocates powers among cotrustees and makes one of them an excluded or directed trustee, that separate regime governs instead.
How a cotrustee actually protects themselves
A dissenting cotrustee who joins in an action at the direction of the majority of the cotrustees and who notifies any cotrustee of the dissent at or before the time of the action is not liable for the action.
Section 736.0703(8), Florida Statutes.
Every word of the timing matters. The protection is for dissent notified at or before the time of the action. A cotrustee who goes along and objects afterwards, or who objects only once the consequences arrive, is outside the subsection. The notice must go to a cotrustee, and while the statute does not require writing, a dissent nobody can later evidence is worth very little.
Subsection (3) approaches the same problem from the other side by requiring a cotrustee to participate in the performance of a trustee’s function unless unavailable through absence, illness, disqualification or other temporary incapacity, or unless the function has been properly delegated. Disengagement is not one of the listed excuses.
What cannot be delegated
A cotrustee may not delegate to another cotrustee the performance of a function the settlor reasonably expected the cotrustees to perform jointly, except that a cotrustee may delegate investment functions to a cotrustee pursuant to and in compliance with s. 518.112. A cotrustee may revoke a delegation previously made.
Section 736.0703(5), Florida Statutes.
The test is what the settlor reasonably expected, which points back at why two trustees were named in the first place. A settlor who appointed a professional and a family member together, so that each would check the other, has an expectation of joint performance running through the arrangement. Convenience is not a reason to collapse it. The final sentence is easy to overlook and useful. A delegation can be revoked.
No Florida court has construed this section
We searched the Florida state courts, the Florida federal district and bankruptcy courts and the Eleventh Circuit for decisions citing section 736.0703, requesting every precedential status rather than relying on the default view, which we have found silently omits some documents. The search returned nothing at all.
That is a striking result for a provision the Legislature has amended five times, in 2006, 2008, 2009, 2014 and 2021. The most consequential questions under it are open. What reasonable care to prevent a breach requires of a cotrustee who suspects but cannot prove one. Whether notifying a cotrustee of dissent must be in writing to be provable. What happens to two deadlocked cotrustees where the instrument is silent. Whether a cotrustee who resigns rather than confront a breach has exercised reasonable care or abandoned the duty. A Florida court answering any of these would be doing it for the first time.