One sentence, filling one silence
If a will or trust instrument granting income to the settlor’s or testator’s spouse for life is silent as to the time of distribution of income and the frequency of distributions, the trustee shall distribute all net income, as defined in chapter 738, to the spouse no less frequently than annually. This provision shall apply to any trust established before, on, or after July 1, 2007, unless the trust instrument expressly directs or permits net income to be distributed less frequently than annually.
Section 736.08147, Florida Statutes. Enacted in 2006 and never amended.
The section applies in a narrow situation and answers it completely. A will or trust gives the settlor’s or testator’s spouse income for life. It says nothing about when or how often. The trustee must pay all net income, at least once a year.
Note that it reaches a will as well as a trust instrument, so testamentary trusts are within it. And net income is defined outside this chapter, in chapter 738, which contains Florida’s principal and income rules.
Why a silence needed filling
This is a tax provision wearing ordinary clothes.
A trust that gives a surviving spouse a qualifying income interest can attract the federal marital deduction, which is central to a great many estate plans. That treatment generally depends on the spouse being entitled to the income payable at least annually.
A drafter who wrote income to my wife for life and stopped there has created a document that does not say so. The intention is obvious to everyone, but the instrument is silent, and a silence in the wrong place can be expensive.
This section supplies the term the drafter omitted, and it does so for documents already signed. That is the point of the retroactivity. It is aimed at instruments written before anyone thought to include the words.
It reaches backwards, and the opt out runs both ways
The provision applies to any trust established before, on, or after July 1, 2007. Most sections carrying a date in this chapter operate forward from the Code’s effective date; this one expressly does not.
The escape is drafted more generously than usual. The section yields where the instrument expressly directs or permits net income to be distributed less frequently than annually.
Permission is enough. A clause giving the trustee discretion over the timing of income distributions displaces the section, without any direction that payments be less frequent. That is a lower bar than the Code usually sets, and it means a trust with an ordinary discretionary timing clause is outside this section entirely.
The one case, and what it does and does not show
In 2023 the Third District affirmed the removal of a person serving as both personal representative of an estate and trustee of a revocable trust. The trial court had listed her failures, and the appellate court recited them, including a failure to:
render any Trust accountings whatsoever in violation of section 736.0813(d), Florida Statutes (2022); provide the Trust’s beneficiaries with relevant information about the assets and liabilities of the Trust and the particulars relating to administration in violation of section 736.0813(e), Florida Statutes (2022); distribute Trust income or principal to the Trust’s beneficiaries in violation of section 736.08147, Florida Statutes (2022)
Gnaegy v. Morris, No. 3D22-2065 (Fla. 3d DCA Dec. 13, 2023). The opinion carries the legend “Not final until disposition of timely filed motion for rehearing.”
The removal was made under section 736.0706(2)(c), and the appellate court affirmed.
We find ample competent, substantial evidence in the record to support the trial court’s determinations, and hold the trial court acted within its discretion in removing Appellant as Personal Representative of the Estate and as Trustee of the Trust.
Gnaegy v. Morris, No. 3D22-2065 (Fla. 3d DCA Dec. 13, 2023).
We want to be precise about what that is. It is a genuine citation and a genuine application. A failure to distribute under this section formed part of the grounds for removing a trustee, and the removal stood on appeal. It is not a construction. The court does not interpret a word of the section, does not address the annual requirement, and does not consider the marital deduction purpose.
So the useful takeaway is a practical one rather than a doctrinal one. Failing to distribute income can contribute to losing the office, and it appears in the case alongside failures to account and to inform under section 736.0813, which is the company this kind of failure usually keeps.
One research note. That decision was issued on the same day as another Florida appellate decision we rely on elsewhere, which is a Second District case. This one is Third District, and we established that from the docket number and the caption rather than from the date or from a database court label.
Beyond that, nothing
Our review found no other citing decision, with a Florida court filter and nationwide, at every precedential status.
What remains untested is the reach of the opt out. The section yields where the instrument permits less frequent distribution, and whether an ordinary clause giving a trustee discretion over the timing of distributions is enough to do that has never been decided. Given how common such clauses are, that question is probably doing more work in practice than the rule itself.