What Section 736.1011 Says
The section is short and every clause of it matters, so here it is in full from the Legislature's own text.
(1) A term of a trust relieving a trustee of liability for breach of trust is unenforceable to the extent that the term:
(a) Relieves the trustee of liability for breach of trust committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries; or
(b) Was inserted into the trust instrument as the result of an abuse by the trustee of a fiduciary or confidential relationship with the settlor.
(2) An exculpatory term drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless:
(a) The trustee proves that the exculpatory term is fair under the circumstances.
(b) The term's existence and contents were adequately communicated directly to the settlor or the independent attorney of the settlor. This paragraph applies only to trusts created on or after July 1, 2007.
Notice the words "to the extent" in subsection (1). The statute does not strike the clause out of the trust. It disables it so far as it reaches conduct the Legislature decided a beneficiary cannot be asked to forgive in advance.
What a Clause Can Never Excuse
Two things, under subsection (1). A breach committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. And a clause that got into the document because the trustee abused a fiduciary or confidential relationship with the settlor.
A drafter of the Florida Trust Code summarised the section this way before it took effect.
Code §736.1011 places restrictions on the enforceability of a term in a trust that attempts to relieve a trustee of liability for a breach of trust. Under the section, an exculpatory term may not relieve a trustee of liability for breaches committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. In addition, an exculpatory term is unenforceable if it was inserted as a result of an abuse of a fiduciary or confidential relationship between the trustee and settlor.
David F. Powell, The New Florida Trust Code, Part 2, 80 Fla. B.J. 9 (October 2006).
What the section does not say is that a clause cannot excuse ordinary negligence. Simple carelessness is neither bad faith nor reckless indifference, so on the face of the statute a carefully drafted clause may reach it. Whether a Florida court would agree in a given case is a question no reported Florida decision under this section answers.
The Rule for a Clause the Trustee Drafted
Subsection (2) is the part with teeth, and it is aimed at a specific situation. That situation is the professional or corporate trustee that supplies the trust form, or the drafter who is also named as trustee.
Where the trustee drafted the exculpatory term or caused it to be drafted, the term is invalid as an abuse of a fiduciary or confidential relationship unless the trustee proves two things. That the term is fair under the circumstances. And that its existence and contents were adequately communicated, directly to the settlor or to the settlor's independent attorney.
The burden sits on the trustee, which is unusual and deliberate. A beneficiary challenging such a clause does not have to prove overreaching. The trustee has to prove fairness and communication.
The Amendment That Reversed the Published Advice
This is worth setting out carefully, because the best secondary source on this section contains a warning that is no longer accurate, and it is still in circulation.
Writing in 2006, before the Code took effect, a drafter noted a problem with the section as enacted.
In a known "glitch," the direct communication requirement in §736.1011 was not made prospective only. The expectation is this oversight will be remedied in a "glitch bill" prior to the date on which the Code takes effect.
David F. Powell, The New Florida Trust Code, Part 2, 80 Fla. B.J. 9 (October 2006), n.37.
He was right that a fix was coming. Chapter 2007-153, section 6 amended subsection (2) before the Code applied to anyone, and it did two things. It added the sentence limiting paragraph (2)(b) to trusts created on or after July 1, 2007, which is the prospective fix he expected. And it added the words "or the independent attorney of the settlor."
That second change matters because the same article carried a warning aimed at corporate trustees.
Corporate trust companies in particular should be mindful of the requirement of direct communication. It is not satisfied by disclosure to the settlor's attorney.
David F. Powell, The New Florida Trust Code, Part 2, 80 Fla. B.J. 9 (October 2006).
That was an accurate description of the statute as enacted in 2006. It is not the law now. Under the current text, communication to the settlor's independent attorney satisfies paragraph (2)(b). We checked the two enrolled session laws against each other to confirm it rather than taking anyone's word for it.
We set this out at length for a reason. The article is the most authoritative commentary on the section, written by someone who helped draft it, and the warning reads as sound advice. Repeating it today would be repeating a statement of law the Legislature superseded before the Code ever applied.
Why There Are No Florida Cases
On August 13, 2026 we searched Florida state and federal decisions for this section number, restricted to Florida courts. The result was zero.
An unrestricted search returns exactly one hit, and it is a false one. A Vermont decision, where the digits appear inside a citation to a Minnesota case rather than as a reference to any Florida statute. That is the kind of coincidence a numeric search produces, and it is why the result has to be read rather than counted.
Be careful about what the zero means. It does not mean no Florida court has ever considered an exculpation clause in a trust, because a decision can address the subject without citing the section number, and we have not run a citator pass. What it does mean is that this section, in force since 2007, does not appear to have been cited by name in a reported Florida decision, and so anyone telling you how Florida courts apply it is reasoning from the text as we are.
Practically, that raises the value of two things. The exact wording of your clause, because there is no case law smoothing over a badly drafted one. And the drafting history, because where the statute is silent the record of what the Legislature did is the best available guide.
Frequently Asked Questions
Can a Florida Trust Excuse a Trustee From Liability?
Only up to a point. Section 736.1011(1) says a term relieving a trustee of liability for breach of trust is unenforceable to the extent it relieves the trustee of liability for a breach committed in bad faith or with reckless indifference to the purposes of the trust or the interests of the beneficiaries. It is equally unenforceable to the extent the term was inserted into the trust instrument as the result of an abuse by the trustee of a fiduciary or confidential relationship with the settlor. So the clause is not void as a whole. It is unenforceable to the extent it reaches conduct the statute protects beneficiaries against.
Does an Exculpation Clause Cover Ordinary Negligence?
The statute does not say it does not, which is the honest answer. Subsection (1) names bad faith and reckless indifference as what a clause cannot excuse, and simple carelessness is neither of those. So on the face of the statute a well drafted clause may reach ordinary negligence. What we cannot tell you is how a Florida appellate court would treat a particular clause, because we located no Florida decision citing this section at all. That absence cuts both ways and is the main reason to read the specific wording rather than rely on a general rule.
What if the Trustee Wrote the Exculpation Clause Itself?
Then the burden shifts onto the trustee. Subsection (2) says an exculpatory term drafted or caused to be drafted by the trustee is invalid as an abuse of a fiduciary or confidential relationship unless the trustee proves that the term is fair under the circumstances, and the term's existence and contents were adequately communicated directly to the settlor or the independent attorney of the settlor. Two elements, both on the trustee, and it is a real burden rather than a presumption of good faith. This is aimed at the situation where a professional trustee supplies the form and the settlor signs it.
Is It Enough to Tell the Settlor's Lawyer About the Clause?
Under the current statute, yes, if that lawyer is independent. Paragraph (2)(b) requires the term's existence and contents to have been adequately communicated directly to the settlor or the independent attorney of the settlor. That alternative is worth knowing about because a drafter of the Trust Code published a warning, before the Code took effect, that direct communication was not satisfied by disclosure to the settlor's attorney. That warning described the statute as originally enacted in 2006. The Legislature added the independent attorney alternative in 2007, before the Code ever applied to anyone.
Does This Section Apply to an Older Trust?
Paragraph (2)(b) does not. It carries its own limit. This paragraph applies only to trusts created on or after July 1, 2007. That sentence was also added by the 2007 amendment, fixing what a drafter of the Code had publicly described as a known glitch, namely that the direct communication requirement had not been made prospective only. So for a trust created before the Code took effect, the communication requirement in paragraph (2)(b) does not apply, and the analysis of an exculpation clause proceeds on the rest of the section and on prior Florida law.
Have Florida Courts Interpreted Section 736.1011?
We could not find a single Florida decision citing it. On August 13, 2026 we searched Florida state and federal decisions for the section number, restricted to Florida courts, and got nothing. The one hit an unrestricted search returns is a Vermont case where the digits appear inside a citation to a Minnesota decision, not a reference to this statute at all. That is our own review by a stated method on a stated date. It does not mean no Florida court has ever considered an exculpation clause, because a decision can discuss the subject without citing the section number, and we have not run a citator pass. It does mean this page rests on the statute and its drafting history rather than on case law, and we would rather tell you that than dress up the gap.
Common Situations
The bank that supplied the form. A settlor used a corporate trustee's own trust template, which contains a generous exculpation clause. Subsection (2) puts the burden on that trustee to prove the term is fair and was communicated to the settlor or the settlor's independent attorney. That is a very different starting point from a clause negotiated by the settlor's own counsel.
The drafting lawyer who is also the trustee. An attorney drafted the trust and was named trustee in it, and the trust excuses the trustee broadly. Whether that clause was drafted or caused to be drafted by the trustee is the question subsection (2) turns on, and the answer is usually yes.
The trust signed in 2004. A beneficiary reads paragraph (2)(b) and assumes the communication requirement applies. It does not. That paragraph applies only to trusts created on or after July 1, 2007, and for an older instrument the analysis runs on the rest of the section and on prior Florida law.
Sources of Law
- Fla. Stat. §736.1011 (exculpation of trustee). Official text, Online Sunshine, quoted in full above. History: s. 10, ch. 2006-217; s. 6, ch. 2007-153. (retrieved 2026-08-13)
- Laws of Florida, ch. 2006-217, s. 10 (as enacted, requiring the trustee to prove the term fair and that its existence and contents were adequately communicated directly to the settlor, with no independent attorney alternative and no prospective limit) and ch. 2007-153, s. 6 (splitting subsection (2) into paragraphs, adding "or the independent attorney of the settlor", and adding the sentence limiting paragraph (2)(b) to trusts created on or after July 1, 2007). The two enrolled chapters were compared directly. (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 and, at note 37, for the anticipated glitch bill. ★ Reading note, and it is important. The same article advises that the direct communication requirement "is not satisfied by disclosure to the settlor's attorney." That accurately described the statute as enacted in 2006. Chapter 2007-153 added the independent attorney alternative before the Code took effect, so that advice does not state current law, and this page says so rather than repeating it. The author was a drafter of the code. (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 zero cases on August 13, 2026. An unrestricted search returned a single out of state decision in which the digits appear inside a citation to another state's case rather than as a reference to this statute. We located no Florida decision citing section 736.1011. That does not mean no Florida court has considered an exculpation clause, because a decision may address the subject without naming the section, and no citator pass was run.
- Quotation note: the passages above reproduce the Legislature's own statutory and session law text and a signed bar journal article by a named author. Nothing is drawn from a headnote, case summary, or other editorial layer of a commercial research service.
- Nothing on this page predicts a result. How far a particular exculpation clause reaches depends on its wording, who drafted it, and when the trust was created.
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, not legal advice, and no attorney-client relationship is created. How far an exculpation clause reaches depends on the trust's own wording and who drafted it, which we review at a free consult. Please do not send confidential details until we have connected.
