What Section 736.0803 Says
This is the whole section, quoted from the Legislature's own text.
If a trust has two or more beneficiaries, the trustee shall act impartially in administering the trust property, giving due regard to the beneficiaries' respective interests.
One sentence, and two phrases carry it. The duty only exists where there are two or more beneficiaries, which is most trusts. And the standard is due regard to their respective interests, which is not the same as treating them alike.
The section has never been amended since the Florida Trust Code took effect on July 1, 2007, so every case decided under it is construing the same words.
Impartial Does Not Mean Equal
A trust usually creates unequal positions on purpose. One person may take income for life while another waits for what is left. One child may have a distribution standard tied to education, another may not. A trustee who ignored those differences and paid everyone identically would be defeating the trust, not administering it impartially.
The statutory phrase is due regard to the beneficiaries' respective interests. Respective is the operative word. The trustee has to work out what each beneficiary is actually entitled to under the document and then administer without preferring one for reasons the document does not support.
A drafter of the Trust Code, writing in the Florida Bar Journal before it took effect, listed impartiality among the common law duties the code was writing down, and described the whole list this way.
A comprehensive list of statutory duties, all of which are consistent with existing Florida decisional and statutory law
David F. Powell, The New Florida Trust Code, Part 2, 80 Fla. B.J. 9 (October 2006).
So the section codified a duty Florida trustees already had. It did not invent one.
Can a trust document switch this off?
Mostly not, and the answer sits in a different section. Florida trust law generally lets the settlor’s document override the Code’s rules, but section 736.0105(2) sets out a list of provisions the terms of a trust cannot displace. The good faith duty is on that list.
The terms of a trust prevail over any provision of this code except:
(b) Subject to s. 736.1409, relating to the duties and liabilities of a directed trustee; s. 736.1411, relating to limitations on duties of a trustee or trust director to monitor, inform, or advise on matters involving the other; and 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, the duty of the trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.
Section 736.0105(2), opening words, and paragraph (2)(b), Florida Statutes.
Note what that paragraph protects. It is the duty to act in good faith, in accordance with the terms and purposes of the trust and the interests of the beneficiaries. Impartiality is not named in it by section number, so we are not going to tell you the Legislature listed section 736.0803 among the unwaivable provisions. It did not. What it made unwaivable is the underlying obligation that impartiality expresses, which is why a clause purporting to free a trustee from any duty to weigh one beneficiary against another runs into difficulty however it is drafted.
We quoted that paragraph in full rather than trimming it, because the opening words do real work. Since 2021 it begins subject to three sections of Florida’s directed trust law, namely the duties and liabilities of a directed trustee, the limits on a trustee’s duty to monitor or advise about a trust director, and the allocation of powers among cotrustees. So in a directed trust, where somebody other than the trustee holds the power to direct, the protection is qualified by that separate regime. Commentary written before 2021 will not carry that qualification, and a good deal of the available commentary is undated.
The Case: A Promise, a Bank, and Yale Tuition
In 2014 Florida's Third District decided the only case we located that applies this section, and its facts are worth setting out because they are not what the section is usually associated with.
A woman had promised to pay the educational expenses of her first cousin's grandson. He relied on the promise, applying to and attending Yale instead of using a prepaid tuition account for a Florida university. She amended her revocable trust repeatedly over the years and left written directions. After her death her son became co-trustee alongside a bank, and the tuition stopped being paid.
The court held the co-trustees liable, and named the duties broken.
The failure of Wells Fargo to carry out the terms of the Trust, under the factual circumstances of this case, violated sections 736.0801, Florida Statutes (2010) (duty to administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries), 736.0803 (duty to act impartially as among beneficiaries), and 736.0804 (duty to prudently administer the trust by considering the purposes, terms, distribution requirements, and other circumstances of the trust). These breaches of duty establish the liability of the co-trustees for a breach of trust. § 736.1001(1), Fla. Stat.
Kritchman v. Wolk, 152 So. 3d 628 (Fla. 3d DCA 2014).
Notice what the impartiality breach consisted of. It was not a trustee choosing between an income beneficiary and a remainder beneficiary. It was a corporate trustee declining to carry out the settlor's written directive in favour of one beneficiary, and the court treated that as partial administration.
The same opinion is unusually direct about what institutional trustees are paid for.
Institutional trustees charge and are paid fees for following such directions, and they are exposed to liability when they do not.
Kritchman v. Wolk, 152 So. 3d 628 (Fla. 3d DCA 2014), n.6.
What That Court Did Not Decide
Read the quoted passage again and notice its shape. The court found three duties violated by one course of conduct, and gave each a one-line description in brackets. It did not separately analyse the duty of impartiality, explain how far a trustee may lean before it becomes partiality, or set out a test.
We are not going to build one out of a parenthetical. What the case establishes is that a Florida appellate court has found this duty breached, and that failing to carry out the settlor's written directions can be how it happens. It does not tell you where the edge is in a harder case.
The Second Marriage Problem Nobody Has Litigated
The conflict people usually mean when they talk about impartiality is the second marriage trust. A surviving spouse takes income for life. The children of a first marriage take the remainder. The spouse wants income now, so bonds and yield. The children want growth, so equities. Every investment decision moves value between them, and the trustee is in the middle of a family that may already dislike each other.
It is exactly the situation section 736.0803 is written for. And on August 13, 2026 we searched Florida state and federal decisions for this section number and found no case deciding it.
That is worth saying plainly rather than filling the space. If this is your situation, what governs is the trust's own language, meaning the distribution standard, the investment powers, whether the settlor said anything about balancing the two classes, and whether the trustee has a power to adjust between income and principal. The statute gives you the duty. Florida's appellate courts have not yet given you a case about it.
What a Beneficiary Can Actually Do
A violation of this duty is a breach of trust, which opens the remedies in section 736.1001. In the 2014 case the court moved straight from the breached duties to liability.
But impartiality claims are won on the record, and most of the useful record gets created before anyone files anything. Three practical steps.
Ask in writing, and ask specifically. Not whether the trustee is being fair, but what the trustee did, under which provision of the trust, and why. A written question produces a written answer or a conspicuous silence, and both are useful later.
Get the accounting. The duty to keep qualified beneficiaries reasonably informed sits in a different section, and it is the route to the underlying numbers. Our page on the duty to inform and account covers what you are entitled to and how to ask.
Read the distribution provision before you argue about fairness. Most disputes that feel like partiality turn out to be disagreements about what the trust actually requires. If the document draws a distinction, honouring it is not partiality. If it does not, a trustee preferring one beneficiary needs a reason grounded in the trust.
Frequently Asked Questions
What Does a Trustee's Duty of Impartiality Mean in Florida?
Section 736.0803 states it in one sentence. If a trust has two or more beneficiaries, the trustee shall act impartially in administering the trust property, giving due regard to the beneficiaries' respective interests. The phrase that matters is due regard to respective interests. It does not say treat everyone the same. A trust often gives beneficiaries genuinely different entitlements, and honouring those differences is what the section requires. What it forbids is a trustee preferring one beneficiary for reasons the trust does not support.
Does Impartial Mean the Trustee Must Treat Beneficiaries Equally?
No. Equal treatment and impartial treatment are different things, and conflating them is the most common misunderstanding of this section. A trust that gives one person an income interest and another the remainder has created unequal positions on purpose. A trustee who paid them identically would be defeating the trust rather than honouring it. The statutory test is due regard to their respective interests, which means the trustee has to understand what each beneficiary is entitled to under the document and administer with that in mind.
Has a Florida Court Ever Found a Trustee Violated the Duty of Impartiality?
Yes, once that we located. In 2014 Florida's Third District held that a corporate co-trustee's failure to carry out the terms of a trust, in the factual circumstances of that case, violated the duty to act impartially as among beneficiaries, alongside the duty of good faith and the duty of prudent administration. The facts were not the classic conflict between classes of beneficiaries. A woman had promised to pay a young relative's university expenses, he relied on it by attending Yale rather than using a Florida prepaid tuition account, and after her death the co-trustees did not pay. The court treated the failure to follow the settlor's written directive as breaching the duty.
What About a Second Marriage Trust Where the Spouse and Children Disagree?
That is the situation people usually have in mind, a surviving spouse receiving income while the children of a first marriage wait for the remainder, and the two sides want opposite things from the investments. It is a real conflict and the section is written for it. What we can tell you honestly is that we located no Florida decision deciding that fact pattern under section 736.0803 itself. So the duty is clear and statutory, and there is no Florida appellate case telling you how a court will weigh a specific investment strategy between those two classes. If that is your situation, the trust's own language about distribution standards and investment powers is doing more work than the case law.
Did Section 736.0803 Change Florida Law When It Was Enacted?
A drafter of the Florida Trust Code said it did not. Writing in the Florida Bar Journal in 2006, before the code took effect, he listed impartiality among the fundamental common law duties the code was codifying and said of the whole list that they are all consistent with existing Florida decisional and statutory law. That is useful in two directions. It means the section did not create a new obligation trustees had never had, and it means older Florida authority about even-handed administration describes the same duty. The section has never been amended since it took effect on July 1, 2007.
Can I Sue a Trustee for Favouring Another Beneficiary?
A violation of the duty is a breach of trust, which opens the remedies in section 736.1001. In the 2014 case the court moved directly from the finding of breached duties to liability, saying those breaches of duty establish the liability of the co-trustees for a breach of trust. What matters in practice is the record. Impartiality cases turn on what the trustee actually did, what the trust required, and what the trustee said about it at the time, so written requests and written answers are worth far more than recollections of phone calls. Our page on the duty to inform and account covers how to get the information you need first.
Does the Trustee Have to Explain a Decision That Favours Someone Else?
The impartiality section itself does not impose a duty to explain. The reporting obligations are in a different section, and they are substantial, because a trustee must keep qualified beneficiaries reasonably informed of the trust and its administration. In practice a request for an accounting and for the basis of a decision does two things at once. It gets you the information, and it creates a record of what the trustee knew and said at the time, which is the material an impartiality claim is later built from.
Common Situations
The stepmother and the adult children. A father's trust pays income to his second wife for life, with the remainder to his children. The trustee shifts the portfolio toward income, the children watch the growth stall, and everyone assumes the law has a rule about the right balance. Under this section, in Florida, no appellate decision we located supplies one. The answer lives in the trust's investment and distribution language, which is why that document is the first thing to read.
The written instruction that stopped being followed. A parent left clear written directions about paying a grandchild's school fees, and after the parent's death the corporate trustee reads the trust more narrowly and stops. That is close to the facts of the 2014 case, and the court there did not accept the narrow reading.
The sibling trustee who says everyone is being treated the same. A brother administering the family trust insists he is being scrupulously equal. If the trust gives the beneficiaries different entitlements, equal treatment is the wrong benchmark and may itself be the problem. The standard is due regard to respective interests, not identical cheques.
Sources of Law
- Fla. Stat. §736.0803 (impartiality: where a trust has two or more beneficiaries, the trustee must act impartially, with due regard to the beneficiaries' respective interests). Official text, Online Sunshine. History: s. 8, ch. 2006-217. The section has not been amended since the Florida Trust Code took effect on July 1, 2007. (retrieved 2026-08-13)
- Related sections from the same official source: §736.0801 (duty to administer in good faith); §736.0804 (prudent administration); §736.1001 (breach of trust and remedies). (retrieved 2026-08-13)
- Kritchman v. Wolk, 152 So. 3d 628 (Fla. 3d DCA Oct. 1, 2014), No. 3D12-2977 and No. 3D12-2457, Salter, J., with Lagoa and Emas, JJ.; appeal from the Circuit Court for Miami-Dade County. Quoted above for the finding that the duties in sections 736.0801, 736.0803 and 736.0804 were violated, and from footnote 6 on institutional trustees. Reading note: the court found three duties breached by a single course of conduct and described each in a short parenthetical. It did not separately analyse what the duty of impartiality requires, and this page does not suggest it did. Source caveat: the text of this opinion as published online carries the standard legend that it is not final until disposition of a timely filed motion for rehearing; a Southern Reporter citation has since issued, which indicates it became final. Source: CourtListener. (retrieved 2026-08-13)
- David F. Powell, The New Florida Trust Code, Part 2, 80 Fla. B.J. 9 (October 2006), at 22, quoted above for the statement that the codified duties are consistent with existing Florida decisional and statutory law. 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: a search of Florida state and federal decisions for this section number, restricted to Florida courts, returned one case on August 13, 2026. We located no Florida decision applying section 736.0803 to the conflict between an income beneficiary and a remainder beneficiary, which is the fact pattern the duty is most often associated with. 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, the Legislature's own statutory text, and a signed bar journal article by a named author. Nothing is drawn from a headnote, case summary, or any other editorial layer of a commercial research service.
- The decision on this page is a published ruling in another party's case, not a matter handled by this firm. Outcomes depend on the trust language and the facts, 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 trustee has failed to act impartially depends on the trust's own terms and the facts, which we review at a free consult. Please do not send confidential details until we have connected.
