A short section pointing at a permanent consequence
With the consent of that organization or organizations, a trustee of a trust for the benefit of a public charitable organization or organizations may come under s. 736.1208(5) by delivery of notice to the Attorney General of the election, accompanied by the proof of required consent. Thereafter the trust shall be subject to s. 736.1208(5).
Section 736.1209, Florida Statutes.
To understand this section you have to read the one it points at. Section 736.1208(5) provides that where a release specifies a public charitable organization as beneficiary, the trust at all times thereafter must be operated exclusively for the benefit of, and be supervised by, that organization.
Section 736.1208 reaches that result through a release of the trustee’s power to select charitable donees. This section reaches the same result by election, without any release being necessary.
What the election requires
Three things, and all three are conditions rather than formalities.
The trust must be for the benefit of a public charitable organization or organizations. The election is not available to a trust with individual beneficiaries.
The organization must consent. This is not a step a trustee takes alone, and the reason is obvious once you read section 736.1208(5). The charity is taking on a supervisory role, and it cannot be given that unasked.
Notice must be delivered to the Attorney General, accompanied by proof of the consent. Delivery of notice is defined in section 736.1201(2) and requires a commercial delivery service or a form of mail requiring a signed receipt. Email will not do, and neither will ordinary mail.
The requirement that proof accompany the notice is unusual in this chapter. Elsewhere the Trust Code is content with notice; here the Attorney General receives evidence as well, which reflects how difficult the consequence is to undo.
The part to think hardest about
The final sentence is flat. Thereafter the trust shall be subject to s. 736.1208(5).
Neither section provides a route back. There is no revocation provision, no mechanism for the charity to release the trust, and no time limit on the words at all times thereafter in section 736.1208(5). Whether the general modification machinery elsewhere in the Code could reach such a trust is a question no Florida decision has addressed.
So a trustee considering this should treat it as a permanent change to the character of the trust, made with a signed receipt and a consent letter. That is a small amount of paperwork for a large and apparently irreversible result.
Why anyone would
The usual reason is federal tax classification. Whether a charitable entity is treated as a private foundation or as a public charity depends in part on how tightly it is tied to, and supervised by, a public charity, and that classification drives the excise regime the rest of this Part imports through section 736.1204.
We are not going to work through the federal analysis on a page about a Florida statute. The point for present purposes is that the election exists, it is deliberate, and it should be made on tax advice rather than as a piece of trust housekeeping.
No court has cited this section
Our review found no citing decision at any precedential status in any court we searched, which is consistent with every other section of Part XII.
The section has been amended four times since 2006, including once by a reviser’s bill, which tells you it has been tidied rather than rethought. What remains open is the obvious question, whether an election under this section can ever be undone, and if so by what route.