What Section 736.0814 Says
The section has two halves doing unrelated jobs. The first subsection is the one a beneficiary needs, quoted from the Legislature's own text.
(1) Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of such terms as "absolute," "sole," or "uncontrolled," the trustee shall exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.
The rest of the section is a tax provision, and we come back to it below. A drafter of the Florida Trust Code described the split this way in the Florida Bar Journal, writing before the code took effect.
This section serves two purposes. The initial subsection provides a trustee must exercise all discretionary powers, regardless of the breadth of discretion expressed in the instrument, in good faith and in accordance with the terms and purposes of the trust and the interest of the beneficiaries. The remainder of the section protects trustees who are also beneficiaries of the trust from having adverse gift or estate tax consequences because of their distribution and administration powers with respect to the trust.
Why "Absolute Discretion" Is Not Absolute
Read subsection (1) again and notice what the Legislature bothered to write down. It did not say discretion is subject to good faith and leave it there. It named the three words drafters actually use, absolute, sole and uncontrolled, and said that notwithstanding them the duty applies.
Statutes do not usually list the language they are overriding. That one does, which tells you those words were being relied on in Florida trusts and were being read by trustees as meaning what they say.
So if you are a beneficiary who has been handed a copy of the trust and pointed at the word absolute, the section is the answer to that. The trustee still owes good faith, still has to act in accordance with the terms and purposes of the trust, and still has to have regard to the interests of the beneficiaries.
What the section does not do is say how far a trustee has to stray before a court will act, and that gap is real. We come back to it at the end.
The $8.9 Million a Departing Trustee Held Back
In May 2025 Florida's Fourth District decided the only case we located that cites this section. A charitable trust had appointed a corporate trustee. Six years later the settlor's successor removed it and appointed someone else. The outgoing trustee handed over the assets but kept back $8.9 million, which the court noted was less than ten percent of the trust, as a reserve.
The trust sued, saying the reserve was unreasonable and that the money had been invested imprudently in the meantime. The case was tried without a jury. The circuit court found the reserve reasonable and the investments made in good faith, and the Fourth District affirmed, on the footing that the trial court was best placed to weigh the witnesses and that competent, substantial evidence supported the judgment.
Two things are worth taking from that. A departing trustee is allowed to retain a reasonable reserve for debts, expenses and taxes, which is a separate section of the code, and what counts as reasonable is a question of fact decided at trial. And the appellate court reciting section 736.0814(1) as part of the governing framework is not the same as it deciding what the standard means, which we say more about below.
Why There Is No Jury in a Trustee Case
The part of that decision the court wrote at length about was not the reserve. It was the trust's argument that it should have had a jury.
The court held there is no right to one, and the reasoning goes back further than the Trust Code.
We have found nothing in Chapter 736 which directs fact determinations to be submitted to a jury. This case falls under Rosen's observation that even if a claim against a trustee involves the recovery of money, the claim is within the exclusive jurisdiction of equity, so the right to a jury trial does not attach.
The Rosen it refers to is a 1964 decision of the Third District, quoted in the 2025 opinion.
Courts of equity have original, general, and inherent jurisdiction over trusts and the administration thereof. All trusts, whether express or implied, are within the jurisdiction of the chancellor, even though the relief demanded is for the recovery of money. Proceedings involving trusts are ordinarily within the exclusive jurisdiction of equity.
In Florida the right to a jury trial attaches to claims that were triable by jury at common law before the first state constitution took effect in 1845. Claims by a beneficiary against a trustee were heard in the courts of equity, so they were not, and asking for money instead of an order does not change it.
This is a practical point rather than an academic one. It changes who decides the facts, it changes how a case is presented, and it is worth knowing before a complaint is drafted rather than after a demand for a jury is struck.
The Other Half of the Section, and Why It Exists
Most of section 736.0814 has nothing to do with reviewing a trustee's judgement. It restricts a trustee who is also a beneficiary from making discretionary distributions to themselves, except for health, education, maintenance or support, with exceptions including revocable trusts and powers held by the settlor.
The reason is tax, not trust administration. An unrestricted power to distribute to yourself can be treated as a general power of appointment, which can pull the trust property into your own taxable estate and can create gift tax consequences when you exercise it. The statute limits the power by default so that the trust does not accidentally create that problem. The drafter's description above says the same thing in the language of the code.
If you are a family member serving as trustee of a trust you also benefit from, that half of the section is aimed at you, and the safest reading is that your own distributions are limited to the ascertainable standard unless the trust says otherwise in terms.
Creditor or Beneficiary, and Why It Changes the Answer
The same discretion produces opposite results depending on who is asking, and the Trust Code deliberately splits it.
A creditor of a beneficiary gets the unhelpful answer. Under Fla. Stat. 736.0504 a creditor may not compel a distribution that is subject to the trustee's discretion, whether or not the discretion is subject to a standard, and whether or not the trustee has abused it.
A beneficiary is not in that position, and a drafter of the code put the distinction plainly.
Section 736.0504 applies only with respect to the rights of creditors to compel distributions from discretionary trusts. It does not limit the right of a beneficiary to sue for an abuse of discretion or a failure to comply with a distribution standard.
So the answer to "can anyone make the trustee pay" depends entirely on which chair you are sitting in. If you are a beneficiary, section 736.0814 is your section. If you are a creditor trying to reach a discretionary trust, the creditor page is the one to read, and it is not encouraging.
What Florida Courts Have Not Decided
On August 13, 2026 we searched Florida state and federal decisions for this section number, restricted to Florida courts, and found exactly one case. That is the 2025 Fourth District decision above.
It quotes subsection (1) as part of the framework and affirms a trial court's finding that a trustee acted in good faith. It does not explain what good faith requires, because the appeal turned on the jury trial question. So we do not have appellate authority under this section telling a beneficiary how far a trustee may go.
There is older Florida case law about the limits of trustee discretion, and some of it is useful. But those decisions predate the Trust Code and construe the earlier statute this section was built on, so they describe the law that was carried forward rather than interpreting section 736.0814. We are not going to dress them up as something they are not.
The decision also has no Southern Reporter citation as of this review, so we cite it by docket number and date.
What that means for you is narrow. The duty is clear and statutory. The threshold for enforcing it is not yet drawn by any Florida appellate decision under this section, which makes the facts, the trust language, and the record you build at trial carry more weight than a citation would.
Frequently Asked Questions
Can a Trustee With Absolute Discretion Do Anything They Want in Florida?
No. Section 736.0814(1) says that notwithstanding the breadth of discretion granted in the trust, including terms such as absolute, sole or uncontrolled, the trustee must exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries. The Legislature wrote those three words into the statute, which tells you they were being relied on. So a trust cannot draft its way to an unreviewable trustee. What the section does not do is tell a court how bad a decision has to be before it crosses the line, and as far as we can find no Florida decision has yet drawn that line under this section.
Does a Beneficiary Get a Jury Trial Against a Trustee in Florida?
No. In May 2025 Florida's Fourth District held that a beneficiary's surcharge claim against a trustee carries no right to a jury trial. The reasoning is that a claim against a trustee sits in equity rather than at law, and the right to a jury attaches to claims that were triable by jury at common law before Florida's first constitution. The court said it had found nothing in Chapter 736 directing fact determinations to a jury, and that even where the relief demanded is the recovery of money, proceedings involving trusts are ordinarily within the exclusive jurisdiction of equity. If you are planning a case against a trustee, plan it for a judge.
What Is the Difference Between Section 736.0814 and Section 736.0504?
Who is asking. Section 736.0504 answers a creditor of a beneficiary and the answer is unhelpful to them. A creditor may not compel a distribution that is subject to the trustee's discretion, whether or not the discretion is subject to a standard and whether or not the trustee has abused it. Section 736.0814 answers the beneficiary, and it is the source of the duty a beneficiary can enforce. A drafter of the Trust Code made the pairing explicit, noting that section 736.0504 governs only creditors' ability to compel distributions and does not limit a beneficiary's right to sue for an abuse of discretion or a failure to comply with a distribution standard. Our page on Fla. Stat. 736.0504 covers the creditor side in full.
Can a Trustee Who Is Also a Beneficiary Make Distributions to Themselves?
Only within limits, and the rest of section 736.0814 is largely about this. A person who is both beneficiary and trustee may not make discretionary distributions of principal or income to or for their own benefit except to provide for that trustee's health, education, maintenance or support. The purpose is tax rather than trust law. A drafter of the code explained that this portion of the section protects trustees who are also beneficiaries from adverse gift or estate tax consequences arising from their distribution and administration powers, and that it serves the same purpose as the earlier statute it was based on. There are exceptions, including for revocable trusts and for powers held by the settlor, so the specific trust language matters.
What Does Good Faith Mean for a Florida Trustee?
The statute uses the phrase and does not define it, and this is the honest gap on this page. Section 736.0814(1) requires the trustee to act in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries. In the one Florida decision we located citing the section, the appellate court quoted that standard as part of the governing framework and upheld a trial court's finding that a trustee had invested funds in good faith, but it did not explain what good faith requires, because the appeal turned on a different question. So the content of the standard is worked out case by case in the trial courts, and the appellate law under this section has not yet spoken.
Can a Court Second-Guess a Trustee's Investment Decisions?
It can review them, and the review is deferential to the trial judge who heard the evidence. In the 2025 case the trust argued that the departing trustee had unreasonably held back $8.9 million as a reserve and had invested it imprudently. After a trial without a jury, the circuit court found the reserve reasonable and the investment made in good faith. The Fourth District affirmed, saying the trial court was in the best position to evaluate the credibility and weight to be given to witnesses and evidence and that competent, substantial evidence supported the judgment. The practical lesson for a beneficiary is that these cases are usually won or lost on the evidence at trial, not on appeal.
Has a Florida Court Decided When a Trustee Abuses Discretion Under This Section?
Not that we located. As of August 13, 2026, a search of Florida state and federal decisions for this section number returned one Florida case, and it recites the standard rather than construing it. There is older Florida law about the limits of trustee discretion, but those decisions predate the Florida Trust Code and construe an earlier statute, so they describe the law this section carried forward rather than interpreting the section itself. That is our own review, not a certainty, and it means a beneficiary arguing abuse of discretion is working with a statutory standard that Florida's appellate courts have not yet fleshed out.
Common Situations
The sibling trustee. A brother in Orlando is trustee of the family trust and also one of its beneficiaries. He reads the word absolute and treats the distribution decision as his to make. Two things constrain him, and he is unlikely to know either. He owes good faith regardless of that word, and the second half of this section limits what he can distribute to himself to health, education, maintenance and support unless the trust says otherwise.
The corporate trustee that will not explain. A daughter asks a bank trustee why a distribution was refused and gets a letter citing the trustee's sole discretion. That phrase does not end the conversation. Whether there is a claim depends on the terms and purposes of the trust and what the trustee actually did, and the first useful step is a written request that creates a record rather than a phone call that does not.
The demand for a jury. A beneficiary files a surcharge claim and asks for a jury, expecting twelve people to hear how the trustee behaved. The demand gets struck, because trust claims sit in equity. Knowing that at the outset changes how the case is built, and it is better learned from this page than from an order.
Sources of Law
- Fla. Stat. §736.0814 (discretionary powers and tax savings, covering subsection (1) the good-faith floor notwithstanding terms such as absolute, sole or uncontrolled; the remainder restricting a trustee who is also a beneficiary to an ascertainable standard, with exceptions). 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: §736.0504 (creditors and discretionary trusts); §736.0707 (delivery of trust property by a removed trustee, and the right to retain a reasonable reserve for debts, expenses and taxes); §736.1001 (breach of trust and remedies). (retrieved 2026-08-13)
- Mastriana v. Brown Brothers Harriman Trust Company, N.A., No. 4D2024-0950 (Fla. 4th DCA May 14, 2025), Gross, J., appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; affirmed. Quoted above for the recitation of section 736.0814(1), for the jury trial holding, and for the passage from Rosen v. Rosen, 167 So. 2d 70, 72 (Fla. 3d DCA 1964), which the 2025 opinion quotes. Reading note: the Fourth District quoted section 736.0814(1) as part of the governing framework and affirmed a trial court finding of good faith on competent, substantial evidence. It did not construe the good-faith standard, and this page does not suggest otherwise. No Southern Reporter citation had issued when this page was prepared, so the decision is cited by docket number and date. Rosen is quoted only as it appears inside the 2025 opinion; we did not retrieve the 1964 opinion itself. 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 description of the section's two purposes; and Part 1, 80 Fla. B.J. 7 (July/August 2006), at 24, note 41, quoted above for the boundary between section 736.0504 and a beneficiary's right to sue for abuse of discretion. The author was a drafter of the code and both articles were 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, and it recites rather than construes subsection (1). We located no Florida decision deciding when a trustee abuses discretion under this section. Older Florida decisions on the limits of trustee discretion construe the predecessor statute rather than this section and are not cited here as authority for it. 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 exceeded its discretion 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.
