The Measure: Greater of Two Numbers
Subsection (1) is short and it decides most of the money in any trust case.
(1) A trustee who commits a breach of trust is liable for the greater of:
(a) The amount required to restore the value of the trust property and trust distributions to what they would have been if the breach had not occurred, including lost income, capital gain, or appreciation that would have resulted from proper administration; or
(b) The profit the trustee made by reason of the breach.
The words to hold on to are greater of. The statute chooses between the two, it does not add them. A beneficiary who has been wronged twice over, once by the loss and once by the trustee’s gain, still recovers on one measure.
The section has never been amended since it took effect on July 1, 2007.
What Restoration Includes
The first limb is more generous than it first reads. It is not the missing money. It is the amount required to restore the trust to what it would have been, and the statute names three things that go into that, namely lost income, capital gain, and appreciation that would have resulted from proper administration.
Over a long breach that can dwarf the sum actually taken. A property sold cheaply in 2012, or a portfolio left in cash through a decade of growth, produces a restoration figure driven by what should have happened rather than what did.
It also means the work is evidential. Somebody has to show what proper administration would have produced, which usually means expert evidence rather than arithmetic.
A Cap, Not a Floor, and a $2.1 Million Reduction
Beneficiaries tend to read this section as setting a minimum. In December 2025 Florida’s Sixth District used it the other way.
A co-trustee had been held personally liable in a final judgment that included a large sum still held by two companies. The appellate court took it out.
No competent, substantial evidence supports the trial court's inclusion of this amount in its final judgment against Appellant because BFCIC and BPL still possess these funds and can distribute them to the family trust.
Battaglia v. Battaglia, No. 6D2023-1658 (Fla. 6th DCA Dec. 23, 2025).
It explained why in one sentence.
Thus, the family trust would obtain a windfall if Appellant were held personally liable for this amount.
Battaglia v. Battaglia, No. 6D2023-1658 (Fla. 6th DCA Dec. 23, 2025).
The judgment was reduced by $2,168,719.99. Removal of the co-trustee and most of the rest of the award stood.
The principle is straightforward once stated. The measure restores the trust to where it would have been. It does not put the trust in a better position than that, and money the trust can still recover from someone else is not money the trustee has to pay twice.
Two cautions about relying on that decision. It has no Southern Reporter citation and carries the standard legend that it is not final until a timely rehearing motion is disposed of. And it is itself a substituted opinion. The court withdrew an earlier disposition from April 2025 and issued this one after a second oral argument.
When More Than One Person Is Liable
Most of the section, subsections (2) through (7), is about what happens between people who are liable together. The default is pro rata contribution, allocated by relative degrees of fault, with the collective liability of a group treated as a single share where equity requires, and ordinary principles of contribution applying.
Two carve-outs matter more than the machinery. A person who committed the breach in bad faith gets no contribution at all. And a person who received a benefit from the breach gets no contribution to the extent of that benefit. Between co-trustees where one acted for himself and the other was merely inattentive, those two rules do most of the allocating.
The timing rules are unforgiving and worth reading before settling anything. Where there is already a judgment against the person seeking contribution, a separate contribution action must be brought within one year of that judgment becoming final. Where there is no judgment, the right is barred unless the person paid the common liability within the beneficiary’s limitations period and sued within a year, or agreed during a pending action to discharge it and did both within a year.
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 six. We read all of the live ones.
Only the December 2025 decision really uses the measure. A 2009 Fourth District case notes the section while describing a proposed amended pleading, saying it creates individual personal liability of a trustee for damages for breach of trust, which is a useful proposition but not a construction. The Fourth District’s 2015 decision in the Corya litigation cites the section alongside another for the proposition that a breach may result in damages against the trustee personally, and we discuss that opinion’s more significant footnote on our remedies page. One of the six records is an earlier opinion in that same litigation which the court itself withdrew, and it is not authority.
So no Florida decision we located construes the contribution regime in subsections (2) to (7) at all, despite it being the part of the section most likely to matter where there are co-trustees.
A section-number search does not find decisions that discuss a provision without naming it, and we have not run a citator pass.
Frequently Asked Questions
How Are Damages for Breach of Trust Calculated in Florida?
Section 736.1002(1) sets the measure as the greater of two figures. The first is the amount required to restore the value of the trust property and trust distributions to what they would have been if the breach had not occurred, including lost income, capital gain, or appreciation that would have resulted from proper administration. The second is the profit the trustee made by reason of the breach. It is greater of, not sum of, so a beneficiary does not recover both.
Does the Trust Get Back the Growth It Would Have Had?
That is exactly what the first limb is designed to capture. The statute does not stop at the money that went missing; it restores the value of the trust property and distributions to what they would have been, and it names lost income, capital gain and appreciation that would have resulted from proper administration. So on a long running breach the growth foregone can exceed the sum taken. Proving it is a different matter and generally needs evidence about what proper administration would have produced.
Can a Beneficiary Recover Both the Loss and the Trustee Profit?
No. The statute says greater of, which means the court picks one measure. Where a trustee has taken an opportunity that belonged to the trust and profited handsomely while the trust s own loss was modest, the profit limb may be the larger number. Where the trust missed years of growth, restoration usually is. Choosing the right limb, and pleading it, is a real part of the work.
Can This Section Reduce What I Recover?
Yes, and a Florida court did exactly that in December 2025. A co-trustee had been held personally liable for a sum that included over two million dollars still sitting with companies the trust could recover from directly. The Sixth District held there was no competent, substantial evidence supporting the inclusion of that amount, because the entities still possessed the funds and could distribute them to the trust, and said the trust would obtain a windfall if the co-trustee were held personally liable for it too. The judgment was reduced by $2,168,719.99.
What if More Than One Trustee Is Responsible?
Subsections (2) to (7) are a contribution regime. Where more than one person is liable to the beneficiaries for a breach, each liable person is generally entitled to pro rata contribution from the others, with shares allocated by relative degrees of fault and by principles of equity. There are two important exclusions. A person who committed the breach in bad faith is not entitled to contribution at all. And a person who received a benefit from the breach is not entitled to contribution to the extent of that benefit.
Is There a Deadline to Claim Contribution From a Co-Trustee?
Yes, and it is short. Where there is a judgment for breach of trust against the person seeking contribution, a separate action to enforce contribution must be commenced within one year after the judgment becomes final by lapse of time for appeal or after appellate review. Where there is no such judgment, the right is barred unless the person discharged the common liability by payment within the limitations period applicable to the beneficiary and then sued for contribution within one year, or agreed while an action was pending to discharge the liability and did so and sued within one year. Those are traps for a co-trustee who settles and then thinks about the others later.
Does a Judgment Against One Trustee Release the Others?
Not by itself. Subsection (5) says a beneficiary s recovery of a judgment against one liable person does not of itself discharge other liable persons unless the judgment is satisfied, and that satisfaction of the judgment does not impair any right of contribution. So obtaining a judgment against the easiest defendant does not end the claim against the others, though collecting it may.
Common Situations
The portfolio left in cash. A trustee did nothing with a substantial fund for eight years while markets rose. The loss is not a missing sum, it is the growth that should have happened, and the first limb of the measure is written to capture exactly that. The case will turn on evidence of what proper administration would have produced.
The co-trustee who was not paying attention. Two siblings serve as co-trustees and one of them takes money. The other is exposed too, but the contribution rules are unsympathetic to the one who benefited. A person who received a benefit from the breach gets no contribution to the extent of that benefit, and one who acted in bad faith gets none at all.
The money that is still recoverable elsewhere. A judgment includes a sum that a company or a third party still holds and the trust could claim directly. That is the Battaglia situation, and the answer there was that making the trustee pay it as well would give the trust a windfall.
Sources of Law
- Fla. Stat. §736.1002 (damages for breach of trust, covering subsection (1) the greater of restoration including lost income, capital gain and appreciation, or the trustee’s profit; subsections (2) to (7) the contribution regime among multiple liable persons, the bad faith and benefit exclusions, and the one year limits on contribution actions). Official text, Online Sunshine. History: s. 10, ch. 2006-217. Never amended since the Florida Trust Code took effect on July 1, 2007. (retrieved 2026-08-13)
- Battaglia v. Battaglia, No. 6D2023-1658 (Fla. 6th DCA Dec. 23, 2025), per curiam, Traver, C.J., with Smith and Mize, JJ.; affirmed in part, reversed in part. Quoted above for the reduction of the personal judgment. Reading note: this is a substituted opinion. The court withdrew its earlier per curiam affirmance issued in April 2025 and released this opinion after a second oral argument; the withdrawn disposition is not authority and is not cited here. No Southern Reporter citation had issued when this page was prepared, and the opinion carries the legend that it is not final until disposition of a timely filed motion for rehearing. Source: CourtListener. (retrieved 2026-08-13)
- Vaughn v. Boerckel, 20 So. 3d 443 (Fla. 4th DCA Oct. 21, 2009), No. 4D08-2419, Taylor, J. Referred to above for the proposition, stated in the court’s own words, that the section creates individual personal liability of a trustee for damages for breach of trust. Reading note: the court makes that observation while describing the contents of a proposed amended pleading, in deciding that leave to amend should have been granted. It does not construe the section, and this page does not present it as doing so. (retrieved 2026-08-13)
- Corya v. Sanders, 155 So. 3d 1279 (Fla. 4th DCA 2015), which cites this section for the proposition that a breach may result in an award of damages against the trustee personally. That opinion expressly withdrew and replaced an earlier opinion dated November 5, 2014, which is therefore not authority. Its more significant footnote, on the reach of the four year statutory laches bar, is discussed on our §736.1001 page. (retrieved 2026-08-13)
- Gap note, stated for the record: six Florida records cite this section and the live decisions were read. We located no Florida decision construing the contribution regime in subsections (2) to (7), which is the part of the section most likely to matter where there is more than one trustee. 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 and the Legislature’s own statutory text. Nothing is drawn from a headnote, case summary, or other editorial layer of a commercial research service.
- Nothing on this page predicts a result. What a breach is worth depends on the evidence of what proper administration would have produced.
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. What a breach is worth depends on the accountings and the facts, which we review at a free consult. Please do not send confidential details until we have connected.
