Prenuptial agreement law, moved into the Trust Code
A community property trust changes what each spouse owns. So the statute governing challenges to it is not trust law at all. It is the law of marital agreements, and anyone who has litigated a prenuptial agreement will recognise every word.
The trust is unenforceable if the spouse resisting it proves any of the following.
- The trust was unconscionable when made.
- They did not execute it voluntarily.
- It was the product of fraud, duress, coercion, or overreaching.
- The disclosure requirements in paragraph (1)(d) were not met.
Two things about the framing. The burden sits on the spouse attacking the trust, expressly. And the section applies to a trust executed during marriage, which is what these are, since section 736.1503 requires both spouses to sign.
Unconscionability is decided by the judge as a matter of law, not as a finding of fact. That has real consequences for how such a case is run and for what an appellate court will review.
The disclosure ground, and why it is harder than it looks
This is the ground most people would reach for, and it is the one most likely to fail. Paragraph (1)(d) requires that, before execution, the spouse resisting enforcement:
1. Was not given a fair and reasonable disclosure of the property and financial obligations of the other spouse.
2. Did not voluntarily sign a written waiver expressly waiving right to disclosure of the property and financial obligations of the other spouse beyond the disclosure provided.
3. Did not have notice of the property or financial obligations of the other spouse.
Section 736.1512(1)(d), Florida Statutes.
Those three are joined by and, not or. All three must be established.
Work through what that means. A spouse who says they were never given a schedule of assets has satisfied the first limb. If they never signed a waiver, they satisfy the second. But if they knew what their spouse owned, the third limb fails and the ground collapses.
In most marriages of any length, both spouses have a reasonable idea of what the other has. Bank statements arrive at the house, tax returns are filed jointly, the business is discussed over dinner. Actual knowledge defeats this ground even where the formalities were ignored entirely, and that is a deliberate choice. The provision protects a spouse who was kept in the dark, not one who simply was not handed a document.
The subsection that completes the picture
A community property trust may not be deemed unenforceable solely on the fact that the settlor spouses did not have separate legal representation when executing the community property trust agreement.
Section 736.1512(3), Florida Statutes.
Read that together with section 736.1503(4), and the Legislature’s position becomes clear and rather carefully balanced.
Section 736.1503(4) requires the trust to open with a warning, in capital letters, which the Legislature drafted itself, saying that separate counsel for each spouse is “STRONGLY ADVISABLE” though “NOT A REQUIREMENT”. This subsection supplies the consequence. Going without it will not, by itself, invalidate the trust.
So the statute urges separate counsel, declines to require it, and then confirms that its absence is not fatal. Advisable, not required, not fatal. That is three separate legislative decisions pointing the same way, and it tells you the Legislature wanted these trusts to be usable by ordinary couples with one lawyer while making sure nobody could say they had not been warned.
The word doing the work is solely. Lack of separate representation is not a ground on its own, but it is plainly relevant evidence on the grounds that do exist (whether execution was voluntary, whether there was overreaching, and whether the arrangement was unconscionable when made).
What this means in practice
If you are being asked to sign, the protections you actually have are documentary. Get the disclosure, in writing, and keep it. That is not because a missing disclosure will get you out later, since the conjunctive test makes that unlikely, but because the exercise of preparing it is what tells you what you are agreeing to.
If you are the spouse proposing the trust, the same advice applies for the opposite reason. A documented disclosure is what makes the trust hard to attack, and it costs very little at the time.
And if you are already in a dispute, the ground with the most room in it is not disclosure. It is unconscionability, decided by the court as a matter of law, and overreaching, which is a broad word that no Florida decision has yet applied to these trusts.
No court has construed this section
Our review found no citing decision, with a Florida court filter and nationwide, at every precedential status.
That said, this is the section in Part XV most likely to generate the first case. The grounds are borrowed from marital agreement law, where there is a substantial body of Florida authority on unconscionability, voluntariness and disclosure. A court facing the first challenge would have somewhere to start, even though that authority is about a different statute and we do not present it as authority on this one.
What is genuinely open is whether the conjunctive structure of paragraph (1)(d) will be read as strictly as it is written, and what overreaching adds to fraud, duress and coercion, since the Legislature listed it separately and must have meant it to do something.