One sentence, and the first four words carry most of it
Except as otherwise provided in the trust, the provisions of this part apply to all private foundation trusts and split interest trusts, whether created or established before or after November 1, 1971, and to all trust assets acquired by the trustee before or after November 1, 1971.
Section 736.1202, Florida Statutes. Enacted in 2006 and never amended.
Everything in Part XII reads as though it were mandatory. The prohibitions in section 736.1204 are drafted in the language of tax compliance, and tax compliance is not usually optional. But this section puts the whole Part behind four words.
Except as otherwise provided in the trust. The Part is default law. A governing instrument that addresses these matters differently displaces it.
That needs one immediate qualification, because the point is easy to take too far. Displacing Part XII changes what Florida requires. It does not change what federal law requires. The Internal Revenue Code’s private foundation rules apply to a foundation regardless of what any state statute or trust instrument says. What this Part does is make those rules also duties owed by the trustee under Florida law, and it is that overlay the instrument can remove.
The oldest date in the chapter
Every other operative date in the Florida Trust Code runs from July 1, 2007, when the Code took effect, and section 736.1303 is the provision that says so. This section is the exception. It reaches back to November 1, 1971.
The reason is that Part XII is much older than the Trust Code. The federal Tax Reform Act of 1969 created the private foundation excise regime and required foundation governing instruments to contain specific prohibitions. Instruments that lacked them were exposed. Rather than force every foundation in the country to amend its trust deed, states passed statutes writing the prohibitions in by operation of law, with an application date matching the federal timetable.
Florida’s version of that legislation was carried into the Trust Code in 2006, date and all. So when you read November 1, 1971 in a statute enacted in 2006, you are looking at a fossil, and a useful one. It tells you what this Part is for.
Both the trust and the assets
The section covers the trust and, separately, all trust assets acquired by the trustee before or after that date. That second limb closes an argument that might otherwise have been available, that property brought into an old trust later should be treated differently.
It does not matter when the trust was made, and it does not matter when the property arrived. If the trust is within the definitions, the Part applies to all of it.
Working out whether you are inside
The two categories are private foundation trusts and split interest trusts, and both are defined in section 736.1201 by reference to the Internal Revenue Code rather than by any Florida test.
In practice that means you cannot answer the question from chapter 736. A private foundation trust is defined by reference to section 509(a) of the Internal Revenue Code and includes a trust described in section 4947(a)(1). A split interest trust is one for individual and charitable beneficiaries subject to section 4947(a)(2), which is the ordinary charitable remainder or charitable lead trust.
If a trust is neither, this Part is irrelevant to it, and the ordinary charitable trust provisions apply instead, including section 736.0405 on charitable purposes and enforcement.
No Florida court has cited this section
A search returns no citing documents at any precedential status in any court we searched. Every section of this Part that we have examined returns the same, so we tested the search before reporting it and confirmed it returns hits for sections that have them.
The absence makes sense. This is a scope provision for a regime enforced through the federal tax system, and a scope provision is argued about only when someone is trying to escape the regime, which they would do by dealing with the Internal Revenue Service rather than a Florida judge.
One question is genuinely open on the text. How clearly must a trust provide otherwise to displace the Part? The section does not say, and no decision tells you whether general language will do or whether the instrument must address these matters specifically.