The gate almost everyone hits first
“Community property trust” means an express trust that complies with s. 736.1503 and is created, amended, restated, or modified on or after July 1, 2021.
Section 736.1502(2), Florida Statutes.
Two conditions, and the second is a date. The trust must comply with section 736.1503, and it must have been created, amended, restated, or modified on or after July 1, 2021.
That list is more generous than it looks. It is not confined to new trusts. An existing trust that is amended after that date can qualify, provided it also meets the four requirements, which include an express declaration and signatures from both spouses.
But a trust that has sat untouched since 2020 is outside the Part however well it would otherwise fit. For a couple with an older joint trust, the practical question is not whether the trust could qualify but whether it has been amended since the Act took effect.
The Florida hook
“Qualified trustee” means either:
(a) A natural person who is a resident of the state; or
(b) A company authorized to act as a trustee in the state.
Section 736.1502(6), Florida Statutes.
This is what ties the arrangement to Florida, and section 736.1503(2) requires at least one. Either or both spouses may also be trustees, but a qualified trustee is not optional.
The subsection then adds a sentence that exists to prevent an argument. A qualified trustee’s powers include, but are not limited to, maintaining records for the trust and preparing or arranging for the preparation of the trust’s income tax returns, on an exclusive or a nonexclusive basis.
The words or a nonexclusive basis are the point. Without them somebody would eventually argue that a qualified trustee who shares the recordkeeping, or who uses the couple’s own accountant, is not really acting as trustee. The Legislature closed that off.
What community property means here
“Community property” means the property and the appreciation of and income from the property owned by a qualified trustee of a community property trust during the marriage of the settlor spouses. The property owned by a community property trust pursuant to this part and the appreciation of and income from such property are community property for purposes of general law.
Section 736.1502(1), Florida Statutes.
Note that it reaches appreciation and income, not just the property contributed. And note the second sentence, which is doing something larger. It declares the property community property for purposes of general law, not merely for purposes of this Part.
That is the provision on which the whole arrangement depends. A Florida statute cannot dictate federal tax treatment, but it can determine the character of property under state law, and character under state law is what other bodies of law then take as their input.
When the marriage ends, for these purposes
During marriage is defined as a period beginning at marriage and ending on the dissolution of the marriage or upon the death of a spouse. Those are the two events that end the accumulation of community property, and they are the two the Part then deals with separately.
Dissolution is defined more widely than divorce. It covers termination by a decree of dissolution, divorce, annulment or declaration of invalidity, and it also covers entry of a decree of legal separation maintenance by a court in another state that recognizes legal separation or maintenance under its laws.
That second limb matters for couples who move. Florida does not have legal separation. A couple legally separated in a state that does will find the clock has stopped for these purposes, even though Florida would not otherwise recognise their status.
The 2025 amendment, and its retroactivity
This section was amended in 2025, and the amending act carried an unusual instruction that is printed with the statute.
Section 7, ch. 2025-159, provides that “[t]he amendments made by this act to ss. 736.04117, 736.1502, and 736.151, Florida Statutes, are remedial and apply to trusts created before, on, or after the effective date of this act.”
Note printed with section 736.1502, Florida Statutes.
The operative word is remedial. Characterising an amendment as remedial, rather than as a change in the law, is how the Legislature gives it retroactive reach. It is the same technique used in section 736.1109(5), which says that section is intended to clarify existing law and applies to decedents who died before, on or after its enactment.
So the current definitions apply to community property trusts whenever created, and a practitioner reading a 2022 or 2023 commentary on this section should check the text as it now stands rather than as it was then.
No court has construed this section
Our review found no citing decision, with a Florida court filter and nationwide, at every precedential status.
There is a two part article on this Part in The Florida Bar Journal, and we list it below as further reading. We were not able to read it. The Florida Bar’s site refused automated access, the Internet Archive was unavailable when we tried, and the copies we found elsewhere were paywalled extracts. We mention it because it exists and a reader may have better access than we did, and we have not relied on it for anything on this page.