Meeting Packet — Insurance & Banking Subcommittee, The Florida House of Representatives (March 30, 2021)

Summary

Meeting packet of the Insurance & Banking Subcommittee, The Florida House of Representatives, for Tuesday, March 30, 2021, with Chris Sprowls as Speaker and Nick DiCeglie as Chair. The agenda lists HB 609 (Estates and Trusts, by Diamond) and HB 7037 (OGSR/State-funded Infrastructure Bank, by Government Operations Subcommittee, McClure). The staff analysis of HB 609, dated March 26, 2021, states that the bill requires a court to vacate an order establishing the deposit of estate assets in a financial institution if the personal representative posts and maintains a bond, creates the Florida Uniform Directed Trust Act and creates the Florida Community Property Trust Act. It gives an effective date of July 1, 2021, except as otherwise expressly provided in the bill.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Meeting Packet — Insurance & Banking Subcommittee, The Florida House of Representatives (March 30, 2021).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-03-30-3100-insurance-banking-subcommittee-meeting-packets-fn-ibs-d5f5a610e8/, SHA-256 523b5d0732491c3f0944a60b2ce976ffb78719193bce6e2375dcc240089ac092.

Full text

Insurance & Banking Subcommittee
Tuesday, March 30, 2021
1:00 PM – 3:30 PM
Morris Hall (17 HOB)

Meeting Packet

Chris Sprowls Nick DiCeglie
Speaker Chair
The Florida House of Representatives
Commerce Committee
Insurance & Banking Subcommittee
Chris Sprowls Nick DiCeglie
Speaker Chair

Meeting Agenda

Tuesday, March 30, 2021
1:00 PM – 3:30 PM
Morris Hall (17 HOB)

I. Call to Order

II. Roll Call

III. Welcome and Opening Remarks

IV. Consideration of the following bill(s):

• HB 609 Estates and Trusts by Diamond

• HB 7037 OGSR/State-funded Infrastructure Bank by Government Operations
Subcommittee, McClure

V. Closing Remarks

VI. Adjournment

303 House Office Building, 402 South Monroe Street, Tallahassee, FL 32399-1300
(850) 717-4870
HB 609
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 609 Estates and Trusts
SPONSOR(S): Diamond
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1070

REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF

1) Civil Justice & Property Rights Subcommittee 18 Y, 0 N Mawn Jones

2) Insurance & Banking Subcommittee Hinshelwood Luczynski

3) Judiciary Committee

SUMMARY ANALYSIS
Probate is a court-supervised process for identifying and gathering the assets of a deceased person
(decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. A
probate estate consists of the decedent’s property that is the subject of a court’s administration. A court may
place estate assets with a designated financial institution during probate under specified circumstances, but
some courts have used this option as a blanket policy to require estate assets be placed with a designated
financial institution in all probate proceedings. Additionally, at least one court has held that, under a current
Florida statute, will provisions pertaining to a former spouse are void upon the dissolution of the marriage only
where the will was executed during the marriage; if the will was executed before the marriage, the provisions
remain valid, and the former spouse can inherit under the will.
A trust is a relationship in which one party, the settlor, gives another party, the trustee, the right to hold title to
the settlor’s property or assets for a third party’s benefit. The Florida Trust Code (“Trust Code”) applies to
express trusts, charitable and non-charitable trusts, and trusts created by law, judgment, or decree that
requires the trust to be administered in the manner of an express trust. The Trust Code also contemplates the
creation of a directed trust, which is a trust for which the terms grant a power of direction, but the Trust Code
does not provide clear guidelines for their creation and administration. Additionally, the Trust Code leaves
some ambiguity relating to the treatment of, and constitutional protections provided to, homestead property
when such property is devised through a trust.
Federal tax liability for property held jointly by spouses may be higher for surviving spouses in a common law
state, such as Florida, as compared to a community property state. Unlike some other common law states,
Florida currently has no provision for creation of a trust that would allow spouses to designate property as
“community property”.
HB 609:
 Requires a court to vacate an order establishing the deposit of estate assets in a financial institution if
the estate’s personal representative posts and maintains a bond in a specified amount.
 Specifies that will provisions pertaining to a former spouse are void upon the dissolution of the
testator’s marriage to the spouse even if the will was executed before the marriage.
 Clarifies the treatment of homestead property when devised through a revocable or testamentary trust.
 Creates the Florida Uniform Directed Trust Act to provide guidance for the creation and administration
of directed trusts.
 Modifies the Trust Code to incorporate or remove references to directed trusts, as necessary.
 Creates the Florida Community Property Trust Act, providing federal tax benefits upon the death of a
settlor spouse if the property is in a community trust.
The bill has no fiscal impact on local governments and may have a positive fiscal impact on state government
and the private sector.
The bill provides an effective date of July 1, 2021, except as otherwise expressly provided in the bill.

This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h0609b.IBS
DATE: 3/26/2021
FULL ANALYSIS

I. SUBSTANTIVE ANALYSIS

A. EFFECT OF PROPOSED CHANGES:
Florida Probate Code

Probate is a court-supervised process for identifying and gathering the assets of a deceased person
(decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her
beneficiaries.1 A probate estate consists of the decedent’s property that is the subject of a court’s
administration. 2 Probate proceedings are governed by The Florida Probate Code found in chs. 731 –
735, F.S., and the Florida Probate Rules of Court.3 The probate process ensures that the decedent’s
debts are paid in an orderly fashion and that the rightful beneficiaries, whether determined according to
a will (testate succession) or by default rules of succession (intestate succession), receive the property
to which they are entitled.

Effect of Probate

Until admitted to probate in this state or in the state where the decedent was domiciled, a will is
ineffective to prove title to, or the right to possession of, the testator’s property.4 The probate of a will in
Florida is conclusive of the will’s due execution; that it was executed by a competent testator, free of
fraud, duress, mistake, and undue influence; and that the will was unrevoked on the testator’s death.5

Personal Representatives

Generally, any person who has full legal capacity to act on his or her own behalf and is a Florida
resident at the time of the death of the person whose estate is to be administered may act as the
estate’s personal representative.6 A person may not serve in such capacity if the person:
 Has been convicted of a felony;
 Is mentally or physically unable to perform the duties; or
 Is a minor.7

A person who is not a Florida resident may serve in such capacity if the person is:
 The legally adopted child or adoptive parent of the decedent;
 Related to the decedent by lineal consanguinity;
 A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone
related by lineal consanguinity to any such person; or
 The spouse of a person otherwise so qualified.8

Additionally, the following entities may serve as personal representative:
 Trust companies incorporated under Florida law;
 State banking corporations;
 State savings associations authorized and qualified to exercise fiduciary powers under Florida
law; and
 National banking associations and federal savings and loan associations authorized and
qualified to exercise fiduciary powers in Florida.9

1 The Florida Bar, Consumer Pamphlet: Probate in Florida, https://www.floridabar.org/public/consumer/pamphlet026/ (last visited Mar.

26, 2021).
2 S. 731.201(14), F.S.
3 Available at https://www-media.floridabar.org/uploads/2020/01/Probate-Rules-01-01-20.pdf (last visited Mar. 26, 2021).
4 S. 733.103(1), F.S.
5 S. 733.103(2), F.S.
6 S. 733.302, F.S.
7 S. 733.303(1), F.S.
8 S. 733.304, F.S.
9 S. 733.305(1), F.S.

STORAGE NAME: h0609b.IBS PAGE: 2
DATE: 3/26/2021
Duties of Personal Representatives

A personal representative’s duties and powers begin upon appointment.10 Generally, a personal
representative is a fiduciary11 who:
 Must observe the standards of care applicable to trustees;
 Has a duty to settle and distribute the estate in accordance with the terms of the decedent’s will
and the Probate Code in an expeditious and efficient manner; and
 Must use the authority conferred by the Probate Code, under the will, and by court order for the
best interests of interested persons, including creditors.12

Letters of Administration and Fiduciary Bonds

Letters of administration authorize the estate’s personal representative to do all things necessary in the
estate’s administration and distribution. Unless the bond requirement has been waived by a will or by
the court, each personal representative to whom letters are granted, except for a bank or trust company
authorized to act as personal representative, must execute and file a bond with surety to be approved
by the clerk without a service fee.13 The bond must be:
 Payable to the Governor and the Governor’s successors in office and conditioned on the
performance of all duties as personal representative according to law.14
 In the sum the court deems sufficient after consideration of the estate’s gross value, the
relationship of the personal representative to the beneficiaries, exempt property and any family
allowance, the type and nature of the estate’s assets, known creditors, and liens and
encumbrances on the assets.15

Designated Financial Institutions for Certain Assets

When the court with jurisdiction over an estate in the process of administration determines it is
expedient, because the size of the bond required of the personal representative is burdensome or for
other cause, the court may order part or all of the personal assets of the estate placed with a court-
designated bank, trust company, or savings and loan association (“designated financial institution”).16
When the assets are so placed, the institution must file a receipt for the assets received.17 All interest,
dividends, principal, and other debts collected by the designated financial institution on account thereof
must be held by the financial institution in safekeeping, subject to the instructions of the personal
representative authorized by order of the court directed to the financial institution.18 Accountings must
be made to the personal representative at reasonably frequent intervals.19 After the receipt for the
original assets has been filed, the court shall waive the bond given or reduce it so that it applies only to
the estate remaining in the personal representative’s hands.20

Some courts have implemented a blanket policy of requiring that assets be placed with a designated
financial institution in all probate cases.21 However, the use of a designated financial institution is meant
to be determined on a case-by-case basis and, thus, it is unclear whether a blanket policy is proper.22
Further, use of a designated financial institution obligates the personal representative to obtain court

10 S. 733.601, F.S.
11 “Fiduciary” means a person having duty, created by his or her undertaking, to act primarily for another’s benefit in matters connected

with such undertaking. The duties of a fiduciary involve good faith, trust, special confidence, and candor. Black’s Law Dictionary 431
(6th ed. 1991).
12 S. 733.602, F.S.
13 S. 733.402(1), (3), and (4), F.S.
14 Id.
15 S. 733.403, F.S.
16 S. 69.031(1), F.S.
17 Id.
18 Id.
19 S. 69.031(2), F.S.
20 Id.
21 Real Property, Probate, and Trust Law Section of the Florida Bar (RPPTL Section), White Paper HB 609/SB 1070 (Feb. 18, 2021);

see also Florida Office of State Courts Administrator, FY 2017-18 Statistical Reference Guide,
https://www.flcourts.org/content/download/430407/4673785/Chapter-6-Probate-FY-2017-18.pdf (last visited Mar. 10, 2021).
22 See RPPTL Section, supra note 21; see also Goodstein v. Goodstein, 263 So. 3d 78, 80 (Fla. 4th DCA 2019).

STORAGE NAME: h0609b.IBS PAGE: 3
DATE: 3/26/2021
approval before making even routine expenditures on behalf of the estate, which can result in a delay in
administration, and may frustrate the decedent’s intent to empower a personal representative to
manage his or her assets in probate.23

Effect of Subsequent Familial Status Changes on a Will

Neither a subsequent marriage, birth, nor adoption of descendants revokes a person’s prior will, but the
pretermitted24 child or spouse inherits as set forth in ss. 732.301 and 732.302, F.S., regardless of the
will.25 However, any provision of a will executed by a married person that affects the person’s spouse is
void upon the divorce of that person or upon the dissolution or annulment of the marriage.26 After the
dissolution, divorce, or annulment, the will is administered and construed as if the former spouse died
at the time of the dissolution, divorce, or annulment unless the will or the dissolution or divorce
judgment expressly provides otherwise.27

In 2018, a Florida court admitted to probate a will executed by an unmarried testator that included a
devise to his then-fiancée.28 Before his death, the testator married and subsequently divorced the
fiancée but failed to change his will.29 The court held that the provision voiding a will as to a former
spouse after divorce did not apply to the testator’s will because the will was not executed during the
marriage as required by law.30 Consequently, the testator’s former spouse inherited under the will.31

Florida Trust Code

A trust is a relationship in which one party, the “settlor”,32 gives another party, the “trustee”, the right to
hold title to the settlor’s property or assets for a third party’s benefit. A trust may be created and take
effect during a settlor’s lifetime, which is called an inter vivos trust or living trust, or a trust may be
created by a will and take effect when the settlor (testator33) dies.34 An inter vivos trust may be
revocable35 or irrevocable.36 The Florida Trust Code (“Trust Code”), set out in ch. 736, F.S., applies to
express trusts,37 charitable38 and non-charitable trusts, and trusts created by law, judgment, or decree
that requires the trust to be administered in the manner of an express trust.39

Trust Terms

23 See RPPTL Section, supra note 21.
24 See definition of pretermitted-heir statute, infra note 25.
25 S. 732.507(1), F.S. A pretermitted-heir statute, such as ss. 732.301 and 732.302, F.S., “is a state law that, under certain

circumstances grants an omitted heir the right to inherit a share of the testator’s estate, [usually] by treating the heir as though the
testator had died intestate.” Black's Law Dictionary (11th ed. 2019).
26 S. 732.507(2), F.S.
27 Id.
28 Gordon v. Fishman, 253 So. 3d 1218 (Fla. 2d DCA 2018).
29 Id.
30 Id.
31 Id.
32 “Settlor” means a person, including a testator, who creates or contributes property to a trust. S. 736.0103(18), F.S.
33 A “testator” is “[s]omeone who has made a will; [especially] a person who dies leaving a will.” Black's Law Dictionary (11th

ed. 2019).
34 See “inter vivos trust” and “testamentary trust”, Black's Law Dictionary (11th ed. 2019).
35 A “revocable trust” is “[a] trust in which the settlor reserves the right to terminate the trust and recover the trust property and any

undistributed income.” Black's Law Dictionary (11th ed. 2019). Florida law specifically defines “revocable” as applied to a trust to mean
“revocable by the settlor without the consent of the trustee or a person holding an adverse interest.” S. 736.0103(17), F.S.
36 An “irrevocable trust” is “[a] trust that cannot be terminated by the settlor once it is created.” Black's Law Dictionary (11th ed. 2019).
37 An express trust is “[a] trust created with the settlor’s express intent, [usually] declared in writing.” Black's Law Dictionary (11th ed.

2019).
38 “Charitable trust” means a trust created for a charitable purpose, including the relief of poverty; the advancement of the arts, the

sciences, education, or religion; and the promotion of health, governmental, or municipal purposes. If the terms of a charitable trust do
not indicate a particular charitable purpose or beneficiary, the court may select one or more purposes or beneficiaries, which selection
must be consistent with the settlor’s intent to the extent it can be ascertained. S. 736.0405, F.S.
39 Ss. 736.0101 and 736.0102(1), F.S.

STORAGE NAME: h0609b.IBS PAGE: 4
DATE: 3/26/2021
Except as otherwise provided in a trust’s terms, the Trust Code governs the duties and powers of a
trustee, relations among trustees, and rights and interests of a beneficiary.40 The trust’s terms prevail
over any Trust Code provision except:
 The requirements for creating a trust;
 The trustee’s duty to act in good faith and in accordance with the trust’s terms and purposes
and the beneficiary’s interests;
 The requirement that a trust have a purpose that is lawful, not contrary to public policy, and
possible to achieve;
 The limitations period for commencing a judicial proceeding; and
 The court’s power to take such action and exercise such jurisdiction as may be necessary in the
interests of justice.41

The trust’s terms, or, as used in the Trust Code, the “terms of a trust,” means the manifestation of the
settlor’s intent regarding a trust’s provisions as expressed in the trust instrument or as may be
established by other evidence admissible in a judicial proceeding.42

Governing Law

The meaning and effect of a trust’s terms are determined by:
 The law of the jurisdiction designated in the trust at the time of its creation or during the trust
administration; or
 In the absence of a controlling designation, the law of the jurisdiction where the settlor resides at
the time of the trust’s creation.43

However, a jurisdictional designation in a trust’s terms is not controlling as to any matter for which the
designation would be contrary to the state’s strong public policy.44

Principal Place of Administration

Trust terms designating the principal place of trust administration are valid only if there is a sufficient
connection with the designated jurisdiction.45 A sufficient connection exists if:
 A trustee’s principal place of business is located in or a trustee is a resident of the designated
jurisdiction; or
 All or part of the administration occurs in the designated jurisdiction.46

Where the trust’s terms do not validly designate the principle place of trust administration, the principal
place of trust administration is the trustee’s usual place of business where the records pertaining to the
trust are kept or, if the trustee has no place of business, the trustee’s residence.47

A trustee is under a continuing duty to administer the trust at a place appropriate to its purposes and its
administration.48 In keeping with this duty, a trustee may transfer the trust’s principal place of
administration to another state or outside the United States, subject to the court’s right to order,
approve, or disapprove a transfer.49

Judicial Trust Proceedings

40 “Beneficiary” means a person who has a present or future beneficial interest in a trust, vested or contingent, or who holds a power of

appointment over trust property in a capacity other than that of a trustee. Ss. 736.0103(4) and 736.0105(1), F.S.
41 S. 736.0105(2), F.S.
42 S. 736.0103(21), F.S.
43 S. 736.0107, F.S.
44 Id.
45 S. 736.0108(1), F.S.
46 Id.
47 S. 736.0108(2), F.S.
48 S. 736.0108(4), F.S.
49 S. 736.0109(5), F.S.

STORAGE NAME: h0609b.IBS PAGE: 5
DATE: 3/26/2021
The circuit court has original jurisdiction in Florida of all proceedings arising under the Trust Code.
Venue for trust proceedings may be in:
 Any county where the venue is proper under ch. 47, F.S.;
 Any county where the beneficiary suing or being sued resides or has its principal place of
business; or
 The county where the trust has its principal place of administration.50

Generally, judicial trust proceedings are commenced by filing a complaint with the court and are
governed by the Florida Rules of Civil Procedure.51 Judicial trust proceedings may relate to the trust’s
validity, administration, or distribution and may include proceedings to:
 Appoint or remove a trustee;
 Review a trustee’s fees;
 Review and settle interim or final accounts;
 Ascertain beneficiaries;
 Determine any question arising in the administration or distribution of any trust, including
questions of trust instrument52 construction;
 Instruct trustees;
 Determine the existence or non-existence of any immunity, power, privilege, duty, or right; and
 Determine any other matters involving trustees and beneficiaries.53

The court may intervene in a trust’s administration to the extent the court’s jurisdiction is invoked by an
interested person or as provided by law, but a trust is not subject to continuing judicial supervision
except by court order.54

Trust Creation

A trust may be created only to the extent its purposes are lawful, not contrary to public policy, and
possible to achieve.55 A trust may be created by:
 Transfer of property to another person as trustee during the settlor’s lifetime or by will or other
disposition taking effect on the settlor’s death;
 Declaration by the property owner that the owner holds identifiable property as trustee; or
 Exercise of a power of appointment56 in favor of a trustee.57

A trust is created only if:
 The settlor has capacity to create a trust;
 The settlor indicates an intent to create the trust;
 The trust has a definite beneficiary58 or is a charitable trust; a trust for the care of an animal;59 or
a trust for a non-charitable purpose;60

50 S. 736.0204, F.S.
51 A proceeding for the construction of a testamentary trust may be filed in the probate proceeding for the testator’s estate. S.

736.0201(1) and (5), F.S.
52 “Trust instrument” means an instrument executed by a settlor that contains trust terms, including any trust amendments. Except as

required by law, a trust need not be evidenced by a trust instrument, but the creation of an oral trust and its terms must be established
by clear and convincing evidence. S. 736.0407, F.S.
53 S. 736.0201(4), F.S.
54 S. 736.0201(2) and (3), F.S.
55 S. 736.0404, F.S.
56 A power of appointment exists whenever a person has the discretion to determine what persons are to receive beneficial interests in

property or to determine the amount of beneficial interest in property to be received by certain persons. Obviously, one who is the
complete and unqualified beneficial owner of property has such discretion but we do not regard him as having, in addition to such
ownership, a power of appointment. Thus the term, power of appointment, is reserved for those situations where the discretion is not an
incident of the beneficial rights one may otherwise have in the property. Black's Law Dictionary (11th ed. 2019) (citation omitted).
57 S. 736.0401, F.S.
58 A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.

S. 736.0402(2), F.S.
59 A trust may provide for the care of an animal alive during the settlor’s lifetime. The trust terminates on the animal’s death, or, if the

trust was created to provide for the care of more than one animal alive during the settlor’s lifetime, on the death of the last surviving
animal. S. 736.0408(1), F.S.
STORAGE NAME: h0609b.IBS PAGE: 6
DATE: 3/26/2021
 The trustee has duties to perform; and
 The same person is not the sole trustee and the sole beneficiary.61

Trusts Created in Other Jurisdictions

A trust not created by a will is valid if the trust’s creation complies with the law of the jurisdiction in
which the trust instrument was executed or the law of the jurisdiction in which, at the time of creation,
the settlor was domiciled.62 However:
 No trust in any messauges,63 lands, tenements, or hereditaments64 shall arise or result unless
the trust complies with s. 689.05, F.S.; and
 The testamentary aspects of a revocable trust, executed by a settlor who is a domiciliary of this
state at the time of execution, are invalid unless the trust instrument is executed by the settlor
with the formalities required for a will’s execution in this state.65

Trust Modification or Termination

A trust terminates to the extent the trust expires or is revoked or properly distributed under the trust’s
terms.66 The court may, upon the application of a trustee or a qualified beneficiary, modify the terms of
a trust that is not then revocable if:
 The trust’s purposes have been fulfilled or have become illegal, impossible, wasteful, or
impracticable to fulfill;67
 Because of circumstances not anticipated by the settlor, compliance with the trust’s terms would
defeat or substantially impair the accomplishment of a material purpose of the trust; or
 A material purpose of the trust no longer exists.68

Additionally, if compliance with a trust’s terms is not in the best interests of the beneficiaries, upon the
application of a trustee or any qualified beneficiary, a court may at any time modify a trust that is not
then revocable.69 In modifying a trust, a court may:
 Amend or change the trust’s terms;
 Terminate the trust in whole or in part;
 Direct or allow the trustee to do acts that are not authorized or that are prohibited by the trust’s
terms; or
 Prohibit the trustee from performing acts that are authorized or required by the trust’s terms.70

Further, a trust may be modified:
 At any time after the settlor’s death upon the unanimous agreement of the trustee and all
qualified beneficiaries.71
 By the court upon application of a settlor or any interested person to conform the trust’s terms
to the settlor’s intent if it is proved by clear and convincing evidence that both the

60 A trust may be created for a non-charitable purpose without a definite or definitely ascertainable beneficiary or for a non-charitable

but otherwise valid purpose to be selected by the trustee. Such a trust may not be enforced for more than 21 years. S. 736.0409(1),
F.S.
61 S. 736.0402, F.S.
62 S. 736.0403(1), F.S.
63 “Messauge” means a dwelling house with its adjacent buildings and the lands appropriated to a household’s use. Collins English

Dictionary (2012 digital ed.), https://www.dictionary.com/browse/messuage (last visited Mar. 10, 2021).
64 “Hereditaments” means things capable of being directly inherited, whether corporeal or incorporeal, real, personal, or mixed, and

includes not only lands and everything thereon but also heirlooms, and certain furniture which, by custom, may descend to the heir
together with the land. Black’s Law Dictionary 501 (6th ed. 1991).
65 S. 736.0403(2), F.S.
66 S. 736.0410(1), F.S.
67 If a particular charitable trust becomes unlawful, impracticable, impossible to achieve, or wasteful, the court may apply the doctrine of

cy pres to modify or terminate the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner
consistent with the settlor’s charitable purposes. S. 736.0413, F.S.
68 S. 736.04113(1), F.S.
69 S. 736.04115(1), F.S.
70 S. 736.04113(2), F.S.
71 S. 736.0412(1), F.S.

STORAGE NAME: h0609b.IBS PAGE: 7
DATE: 3/26/2021
accomplishment of the settlor’s intent and the trust’s terms were affected by a mistake of fact or
law.72
 By the court upon application of any interested person to achieve the settlor’s tax objectives in
a manner that is not contrary to the settlor’s probable intent.73

Settlor’s Powers and Powers of Withdrawal

While a trust is revocable, the duties of the trustee are owed exclusively to the settlor.74 During the
period the settlor’s power may be exercised, the holder of a power of withdrawal75 has the rights of a
settlor of a revocable trust under this section to the extent of the property subject to the power.76

Cotrustees

A trust may have more than one trustee, who are known collectively as cotrustees. Cotrustees who are
unable to reach a unanimous decision may act by majority decision.77 A cotrustree must participate in
the performance of a trustee’s function unless the cotrustee is unavailable to perform the function
because of absence, illness, disqualification under other law, or other temporary incapacity or the
cotrustee has properly delegated the function’s performance to another cotrustee.78 Except as
otherwise provided in law, each cotrustee shall exercise reasonable care to:
 Prevent a cotrustee from committing a breach of trust; and
 Compel a cotrustee to redress a breach of trust.79

If the terms of a trust provide for the appointment of more than one trustee but confer upon one or more
of the trustees, to the exclusion of the others, the power to direct or prevent specified trustee actions,
the excluded trustees must act in accordance with the exercise of that power.80 Except in cases of
willful misconduct on the part of the excluded trustee, an excluded trustee is not liable, individually or as
a fiduciary, for any consequence that results from compliance with the exercise of that power.81 An
excluded trustee does not have a duty or an obligation to review, inquire, investigate, or make
recommendations or evaluations respecting the exercise of that power.82 The trustee having the power
to direct or prevent actions of the excluded trustees is liable to the beneficiaries with respect to the
exercise of that power and has the exclusive obligation to account to and defend any action brought by
the beneficiaries respecting the exercise of the power.83

Powers to Direct

Generally, a trustee may follow a settlor’s direction that is contrary to the terms of the trust while the
trust is revocable.84 If the terms of a trust confer on a person other than the settlor of a revocable trust
the power to direct certain actions of the trustee, the trustee must act in accordance with an exercise of
the power unless the attempted exercise is manifestly contrary to the trust’s terms or the trustee knows
the attempted exercise would constitute a serious breach of a fiduciary duty that the person holding the
power owes to the trust’s beneficiaries.85 The terms of a trust may also confer on a trustee or other
person a power to direct the trust’s modification or termination.86 A person, other than a beneficiary,

72 S. 736.0415, F.S.
73 S. 736.0416, F.S.
74 S. 736.0603(1), F.S.
75 “Power of withdrawal” means a presently exercisable general power of appointment other than a power exercisable by a trustee and

limited by an ascertainable standard or exercisable by another person only upon consent of the trustee or a person holding an adverse
interest. S. 736.0103(14), F.S.
76 S. 736.0603(2), F.S.
77 S. 736.0703(1), F.S.
78 S. 736.0703(3), F.S.
79 S. 736.0703(7), F.S.
80 S. 736.0703(9), F.S.
81 Id.
82 Id.
83 Id.
84 S. 736.0808(1), F.S.
85 S. 736.0808(2), F.S.
86 S. 736.0808(3), F.S.

STORAGE NAME: h0609b.IBS PAGE: 8
DATE: 3/26/2021
who holds a power to direct is presumptively a fiduciary who, as such, must act in good faith regarding
the trust’s purposes and the beneficiary’s interests.87

Limitations on Proceedings Against Trustees

Generally, all claims by a beneficiary against a trustee for breach of trust are barred as provided in ch.
95, F.S., as to all matters:
 Adequately disclosed in a trust disclosure document88 issued by the trustee, with the limitations
period beginning on the date of receipt of adequate disclosure; and
 Not adequately disclosed in a trust disclosure document if the trustee has issued a final trust
accounting and has given written notice to the beneficiary of the availability of the trust records
for examination and that any claims respecting matters not adequately disclosed may be barred
unless an action is begun within the applicable limitations period provided in ch. 95, F.S., which
begins on the date of receipt of the final trust accounting and notice.89

Unless sooner barred by adjudication, consent, or limitations, a beneficiary is barred from bringing an
action against a trustee for breach of trust respecting a matter that was adequately disclosed in a trust
disclosure document unless a proceeding to assert the claim is begun within six months after receipt
from the trustee of the trust disclosure document or a limitation notice applicable to the disclosure
document, whichever is received later.90

Courts have found that a trust officer, director, or other personnel employed by and acting on behalf of
a corporate trustee may also be personally liable to the trust beneficiaries.91 However, it is unclear
whether the six-month statute of limitations period for bringing proceedings against a trustee extends to
trust officers, directors, and other personnel employed by a corporate trustee.92

Trust Certification

Instead of furnishing a trust instrument copy to a person other than a beneficiary, the trustee may
furnish to the person a certification of trust containing:
 A statement that the trust exists and the date the trust instrument was executed;
 The settlor’s identity;
 The identity and address of the current acting trustee;
 The trustee’s powers;
 The revocability or irrevocability of the trust and the identity of any person holding a power to
revoke the trust;
 The authority of cotrustees to sign or otherwise authenticate and whether all or less than all are
required to exercise the trustee’s powers; and
 The manner of taking title to trust property.93

A trust certification may be signed or otherwise authenticated by any trustee and must state that the
trust has not been revoked, modified, or amended in any manner that would cause the representations
contained therein to be incorrect.94

Effect of Marital Status Change on Revocable Trust

87 S. 736.0808(4), F.S.
88 “Trust disclosure document” means a trust accounting or any other written report of the trustee. A trust disclosure document

adequately discloses a matter if the document provides sufficient information so that a beneficiary knows of a claim or reasonably
should have inquired into the claim’s existence. S. 736.1008(4)(a), F.S.
89 S. 736.1008(1), F.S.
90 S. 736.1008(2), F.S.
91 See, e.g., Beuabien v. Cambridge Consolidated, LTD, 652 So. 2d 936 (Fla. 5th DCA 1995); Raimi v. Furlong, 702 So. 2d 1273 (Fla.

3d DCA 1997).
92 See RPPTL Section, supra note 21.
93 S. 736.1017(1), F.S.
94 S. 736.1017(2) and (3), F.S.

STORAGE NAME: h0609b.IBS PAGE: 9
DATE: 3/26/2021
Unless the trust instrument or the judgment for dissolution of marriage or divorce expressly provides
otherwise, if a revocable trust is executed by a husband or wife as settlor before annulment of the
marriage or entry of a judgment for dissolution of marriage or divorce of the settlor from his or her
spouse, any provision of the trust affecting the settlor’s spouse is void upon annulment of the marriage
or entry of the judgment of dissolution of marriage or divorce.95 Any such trust shall be administered
and construed as if the settlor’s spouse had died on the date of the annulment or entry of the judgment
for dissolution of marriage.96

Tax Implications for Marital Property

Spouses may jointly hold property, but the tax implications for the property vary depending on whether
the property is held in a common law state, such as Florida, or in a community property state.97 Under
s. 1014(b)(6) of the Internal Revenue Code (“IRC”), the surviving spouse in a community property state
receives a fair market value basis, determined as of the date of the deceased spouse’s death, in all of
the couple’s property (referred to as a “step-up” in basis).98 In contrast, the surviving spouse of a
marriage in a common law state will receive a step-up in basis only in the property owned by the
deceased spouse; the tax basis of the property owned by the surviving spouse is unaffected by the
spouse’s death and does not receive a step-up in basis.99

Many Florida residents moved to Florida with community property, whether acquired in one of the
community property states or in a foreign jurisdiction with a community property regime.100 There are
some indications that community property retains its character as community property when brought to
Florida, but there is uncertainty as to whether the Internal Revenue Service (“IRS”) may challenge the
status of community property for a Florida decedent for purposes of s. 1014(b)(6) of the IRC.101 If the
IRS does challenge the community property status of a Florida decedent in this way, Florida residents
may be deprived of tax benefits afforded to residents of other states.102

Some states, including Alaska, Tennessee, and South Dakota, have adopted community property trust
legislation allowing their residents to treat property, acquired by a marital couple as separate property,
as community property.103 This allows persons who moved to the state with community property to
preserve the property’s community property status.104 Ohio, Michigan, and North Carolina are currently
considering such legislation.105

Homestead Protections After Devise

The constitutional homestead exemption protects $1,000 of personal property along with a person’s
residence and the adjoining land from forced sale initiated by the owner’s creditors in most situations.106
Homestead protections pass to a deceased property owner’s surviving spouse, dependent children,
and heirs, protecting the property from forced sale to satisfy the deceased owner’s debts.107 The

95 S. 736.1105, F.S.
96 Id.
97 See RPPTL Section, supra note 21.
98 Id.
99 As an example of the disparate tax outcomes in common law states and community property states, suppose a married couple,

Husband and Wife, own appreciated undeveloped real estate purchased some time ago with a current tax basis of $100,000 and a $1
million fair market value. Title to the property is held jointly by both Husband and Wife. Husband dies, and Wife sells the real estate at
year’s end for its $1 million fair market value. In a common law state, s. 1014(b)(6) of the IRC results in a $550,000 income tax basis to
Wife, because Husband’s basis in his half of the property increases from the original $50,000 to $500,000 (the value on his date of
death), and Wife’s value remains $50,000. The real estate’s sale produces a $450,000 gain (the $1 million fair market value minus the
$550,000 basis) and a tax liability of $107,100 ($450,000 x 23.8 percent). In contrast, in a community property state, s. 1014(b)(6) of
the IRC results in a $1 million income tax basis to Wife due to the step-up in basis of the property in its entirety. The real estate’s
subsequent sale produces zero gain ($1 million fair market value less $1 million basis) and zero tax liability. Id.
100 Id.
101 Id.
102 Id.
103 Id.
104 Id.
105 Id.
106 Art. X, s. 4(a), Fla. Const.
107 Art. X, s. 4(b), Fla. Const.; see Public Health Trust v. Lopez, 531 So. 2d 946, 951 (Fla. 1988).

STORAGE NAME: h0609b.IBS PAGE: 10
DATE: 3/26/2021
homestead exemption also restricts a property owner’s ability to devise homestead property away from
a surviving spouse or dependent children, even if the spouse or children have abandoned the
property.108

Although there is reasonable legal certainty about the rights of creditors and a decedent’s family when
homestead property is devised by a will, there is less certainty when homestead property is devised by
a revocable trust as there is little statutory guidance for this scenario.109 Florida law is clear that the
constitutional restrictions on the devise of homestead property apply to homestead property held in a
revocable trust.110 However, it is unclear whether the protection from forced sale carries over to the
property owner’s heirs when the heirs inherit the property through a revocable trust.111 In particular,
there is uncertainty as to the homestead exemption’s application to the trustee’s right to sell real
property subject to the trust’s terms and pay valid claims against the decedent’s estate out of trust
assets.112

Florida courts attempting to address this uncertainty have reached opposite results. The Third District
Court of Appeal held that the devise of homestead property through a revocable trust’s residuary clause
caused the homestead exemption to be lost, and thus to not pass to the trust’s beneficiaries; however,
a footnote indicates that, had the property been specifically devised under the revocable trust, the
exemption may have passed to the beneficiary.113 The First District Court of Appeal looked to the
devise’s substance, rather than its form, to find that the homestead exemption for property devised
through a trust for the benefit of the decedent’s adult daughter passed to the daughter, as she would
have otherwise been entitled to claim homestead protection had title passed to her by will or
intestacy.114 Similarly, the Fourth District Court of Appeal found that a settlor’s interest in homestead
property held in a revocable trust was constitutionally protected homestead which could not be used to
pay the estate’s claims and expenses.115

Effect of Proposed Changes

Florida Probate Code

Designated Financial Institutions for Certain Assets

In circumstances where a probate court has ordered that assets of the estate be placed in a financial
institution, the bill requires that the court vacate or terminate any order establishing the depository if the
estate’s personal representative posts and maintains a bond for the value of the estate’s assets or in
some other reasonable amount determined by the court. The bill also changes the term “assets” to
“property” to conform to common statutory usage.

Effect of Subsequent Familial Status Changes on a Will

The bill specifies that a devise to a former spouse under a will is void upon the dissolution of the
marriage of the testator and his or her spouse, regardless of whether the testator was married to the
former spouse at the time of the devise. The bill also specifies that dissolution of marriage occurs at the
time the decedent’s marriage is judicially dissolved or declared invalid by court order. However, the bill
specifies that this section does not invalidate a will provision:
 Executed by the testator after the dissolution of marriage;
 If the will states a specific intent to the contrary; or
 If the dissolution of marriage judgment expressly provides otherwise.

108 Art X, s. (4)(c), Fla. Const.; ss. 732.702(1) and 732.401(1), F.S.; see also In re Estate of Scholtz, 543 So.2d 219, 221 (Fla. 1989).
109 See RPPTL Section, supra note 21.
110 Id.
111 Id.
112 Id.
113 Elmowitz v. Estate of Zimmerman, 647 So. 2d 1064 (Fla. 3d DCA 1994).
114 HCA Gulf Coast Hospital v. Estate of Downing, 594 So. 2d 774 (Fla. 1st DCA 1992).
115 Engelke v. Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006).

STORAGE NAME: h0609b.IBS PAGE: 11
DATE: 3/26/2021
This section applies to wills of decedents who die on or after the bill’s effective date.

Florida Trust Code

Trust Terms

In relation to directed trusts, the bill modifies current law prohibiting a trust’s terms from modifying a
trustee’s duty to act in good faith and in accordance with the trust’s terms and purposes and the
beneficiary’s interests. Such modifications are set forth in the following sections created by the bill:
 736.1409, F.S., setting forth the duties and liabilities of a directed trustee;
 736.1411, F.S., establishing that the trustee has no duty to monitor, inform, or advise specified
persons; and
 736.1412, F.S., setting forth the rights of excluded cotrustees and trustees with power to direct
the trust to the exclusion of the other trustees.

The bill also expands the definition of “terms of a trust” to include trust provisions as established,
determined, or amended by:
 A trustee or trust director in accordance with applicable law;
 Court order; or
 A non-judicial settlement agreement under s. 736.0111, F.S.

Settlor’s Powers and Powers of Withdrawal

The bill authorizes a trustee to follow a settlor’s direction that is contrary to the trust’s terms while a
trust is revocable.

Cotrustees

The bill deletes a provision relating to a cotrustee’s right to direct a trust. Such a right is addressed in
the Uniform Directed Trust Act, as created by the bill.

Powers to Direct

The bill deletes a provision relating to a non-trustee’s powers to direct. Such powers are addressed in
the Uniform Directed Trust Act, as created by the bill.

Limitations on Proceedings Against Trustees

The bill extends to a “trust director”116 the limitations on proceedings against a trustee. The person is a
trust director whether or not the terms of the trust refer to the person as a trust director and whether or
not the person is a beneficiary or settlor of the trust. The bill also specifies that any claim barred against
a trustee or a trust director is also barred against the directors, officers, and other personnel acting for a
trust; thus, the statute of limitations for bringing a proceeding against a trustee also applies to directors,
officers, and other personnel employed by and acting for a corporate trustee.

Trust Certification

The bill specifies that the trust certification a trustee may furnish to a person, other than a beneficiary,
must indicate whether the trust contains any powers of direction, and if so, must also indicate:
 The identity of the current trust directors;
 The trustee powers subject to a power of direction; and
 Whether the trust directors have directed or authorized the trustee to engage in the proposed
transaction for which the trust certification was issued.

116 “Trust director” means a person who is granted a power of direction by the terms of a trust to the extent the power is exercisable

while the person is not serving as a trustee.
STORAGE NAME: h0609b.IBS PAGE: 12
DATE: 3/26/2021
The bill provides that “powers of direction” means a power over a trust granted to a person by the
trust’s terms to the extent the power is exercisable while the person is not serving as a trustee. The
term includes a power over the investment, management, or distribution of trust property, a power to
amend a trust instrument or terminate a trust, or a power over other matters of trust administration.

Homestead Protections After Devise

The bill provides that, for a revocable or testamentary trust:
 If a devise of homestead property under a trust violates the homestead devise limitations in
article X, section 4(c) of the Florida Constitution, title shall pass as provided under s. 732.401,
F.S., at the moment of death. In other words, immediately upon the decedent’s death, title to the
homestead property will pass to the decedent’s heirs, not the trustee, and the heirs that receive
the property will be determined according to a slightly modified version of the intestate rules of
succession: If there is no surviving descendant of the decedent, the decedent’s spouse receives
the entire intestate estate; but if the decedent is survived by a spouse and at least one
descendant, the surviving spouse takes a life estate in the homestead, with a vested remainder
to the descendants in being at the time of the decedent’s death.117
 A power of sale or general direction to pay debts, expenses, and claims within the trust
instrument does not subject an interest in protected homestead property to the claims of a
decedent’s creditors, administration expenses, or obligations of a decedent’s estate.
 If a trust directs the sale of property that would otherwise qualify as protected homestead, and
the property is not subject to the constitutional limitations on the devise of homestead, title will
remain vested in the trustee and subject to the trust’s provisions.

The bill also authorizes a proceeding to determine the homestead status of real property owned by a
trust to be filed in the probate proceeding for the settlor’s estate if the settlor was treated as the owner
of the interest held in the trust under s. 732.4015, F.S.,118 with such a proceeding to be governed by the
Florida Probate Rules.

Florida Uniform Directed Trust Act

The bill creates the Florida Uniform Directed Trust119 Act (“FUDTA”) as Part XIV of the Trust Code, set
out in ss. 736.1401-736.1416, F.S., which applies to a directed trust with its principal place of
administration in the state, subject to the following rules:
 If the trust was created before July 1, 2021, this part applies only to a decision or action
occurring on or after July 1, 2021.
 If the principal place of trust administration is changed to this state on or after July 1, 2021, this
part applies only to a decision or action occurring on or after the date of the change.

Specifically, the bill:
 Expands the concept of “principal place of administration” to include Florida if the trust terms so
provide and a trust director’s principal place of business is located in or a trust director is a
resident of Florida.
 Specifies that FUDTA does not apply to certain powers, including a power of appointment,120 a
power to remove a trustee or trust director, and a power of a settlor over a revocable trust.
 Sets forth the powers of a trust director, which are generally limited to the powers granted in the
trust instrument and further powers not expressly granted that are appropriate to the exercise or
non-exercise of an expressly granted power.

117 Ss. 732.102 and 732.401, F.S. In lieu of a life estate, the surviving spouse may choose to take an undivided one-half interest in the

homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the
time of the decedent’s death. S. 732.401(2), F.S.
118 “Owner” under s. 732.4015, F.S., includes the grantor of a trust that is evidenced by a written instrument which exists at the time of

the grantor’s death as if the interest held in trust was owned by the grantor. S. 732.4015(2)(a), F.S.
119 “Directed trust” means a trust for which the terms of the trust grant a power of direction.
120 “Power of Appointment” means a power that enables a person acting in a non-fiduciary capacity to designate a recipient of an

ownership interest in or another power of appointment over trust property.
STORAGE NAME: h0609b.IBS PAGE: 13
DATE: 3/26/2021
 Establishes limitations on a trust director, specifying that a trust director with powers relating to
Medicaid payback or a charitable interest is subject to the same rules as a trustee would be
subject to when exercising such powers.
 Specifies that a trust director has the same fiduciary duties and liabilities as a trustee would
have if the trustee had the trust director’s powers.
 Specifies that a directed trustee121 must act to follow a trust director’s power of direction unless
such action would be manifestly contrary to the trust’s terms or the trustee knows the attempted
exercise would constitute a serious breach of a fiduciary duty that the person holding the power
owes the trust’s beneficiaries.
 Sets forth the duties of a trustee and a trust director to provide specified information about the
trust to the other to the extent the information relates to the other’s powers or duties and
requires a trust director to provide specified information to a qualified beneficiary upon request.
 Specifies that a:
o Trustee has no duty to monitor a trust director, nor to inform or advise a settlor,
beneficiary, trustee, or trust director as to how the trustee might have acted differently
from the trust director.
o Trust director has no duty to monitor a trustee, nor to inform or advise a settlor,
beneficiary, trustee, or trust director as to how the trust director might have acted
differently from the trustee.
 Specifies that when a trust’s terms confer a power to direct or prevent actions of the other
trustees on one or more trustee to the exclusion of another trustee, the excluded trustee has the
same duties and liabilities under FUDTA as imposed on a directed trustee.
 Establishes limitations on actions against trust directors, including a six month statute of
limitations.
 Authorizes a trust director to assert the same defenses in a breach of trust action as a trustee
may assert.
 Specifies that a trust director is subject to the personal jurisdiction of Florida courts by accepting
appointment.
 Specifies when a trust director is considered a trustee.
 Authorizes a trustee, settlor, or a qualified beneficiary, under specified circumstances, to make a
written demand that a person designated to serve as a trust director accept or confirm prior
acceptance of the trust directorship in writing.

Community Property Trust Act

The bill creates the Community Property Trust Act (“CPTA”) as Part XV of the Trust Code, which
applies to an express trust that complies with s. 736.1503, F.S., and is created on or after July 1, 2021.
Under the bill, “community property” means the property and the appreciation of and income from the
property owned by a qualified trustee122 of a community property trust during the marriage123 of the
settlor spouses.

Specifically, the bill:
 Establishes the requirements for forming a community property trust, which include expressly
declaring that the trust is a community property trust.
 Specifies the trust terms that spouses may agree to and describes the procedures for amending
or revoking the trust agreement.
 Specifies that property can be classified as community property by transferring the property to a
community property trust.
 Specifies that a community property trust is enforceable without consideration; that the right to
manage and control trust property is determined by the trust agreement’s terms; and that, when

121 “Directed trustee” means a trustee that is subject to a trust director’s power of direction.
122 “Qualified trustee” means either a natural person who is a Florida resident or a company authorized to act as a trustee in Florida.
123 “During the marriage” means a period beginning on the date of marriage and ending upon the dissolution of the marriage or the

death of a spouse. “Dissolution” means either termination of a marriage by a decree of dissolution, divorce, annulment, or declaration of
invalidity or entry of a decree of legal separation maintenance.
STORAGE NAME: h0609b.IBS PAGE: 14
DATE: 3/26/2021
property is distributed from a community property trust, it is no longer community property
unless it is classified as such by a jurisdiction other than Florida.
 Describes creditors’ rights against a married couple who have established a community
property trust.
 Describes the treatment of a surviving spouse’s share and a deceased spouse’s share under a
community property trust.
 Provides that, upon the dissolution of the settlor spouse’s marriage, a community property trust
terminates and the trustee must distribute one-half of the trust assets to each spouse.
 Specifies that a community property trust does not affect the rights of a child of either settlor
who must be provided with child support.
 States that homestead property transferred to a community property trust continues to qualify as
homestead property.
 Specifies that property transferred to a community property trust is community property within
the meaning of s. 1014(b)(6) of the IRC and that community property transferred into a
community property trust from another state retains its character while in the community
property trust.
 Explains that a community property trust executed during a marriage may be unenforceable if
one spouse proves that the community property trust was unconscionable when made, was not
voluntarily created, or that the spouse against whom enforcement is sought:
o Was not given a fair and reasonable disclosure of the property and financial obligations
of the other spouse;
o Did not voluntarily sign a waiver expressly waiving such disclosure beyond what was
provided; and
o Did not have notice of the property or financial obligations of the other spouse.

The bill also makes conforming changes and provides for severability. The bill provides an effective
date of July 1, 2021, except as otherwise expressly provided in the bill.

B. SECTION DIRECTORY:
Section 1: Amends s. 69.031, F.S., relating to designate financial institutions for assets in hands of
guardians, curators, administrators, trustees, receivers, or other officers.
Section 2: Amends s. 732.507, F.S., relating to effect of subsequent marriage, birth, adoption, or
dissolution of marriage.
Section 3: Amends s. 736.0103, F.S., relating to definitions.
Section 4: Amends s. 736.0105, F.S., relating to default and mandatory rules.
Section 5: Amends s. 736.0201, F.S., relating to role of court in trust proceedings.
Section 6: Amends s. 736.0603, F.S., relating to settlor’s powers; powers of withdrawal.
Section 7: Amends s. 736.0703, F.S., relating to cotrustees.
Section 8: Repeals s. 736.0808, F.S., relating to powers to direct.
Section 9: Amends s. 736.1008, F.S., relating to limitations on proceedings against trustees.
Section 10: Amends s. 736.1017, F.S., relating to certification of trust.
Section 11: Amends s. 736.1105, F.S., relating to dissolution of marriage; effect on revocable trust.
Section 12: Creates s. 736.1109, F.S., relating to testamentary and revocable trusts; homestead
protections.
Section 13: Creates Part XIV of ch. 736, F.S., entitled “Florida Uniform Directed Trust Act”.
Section 14: Creates s. 736.1401, F.S., relating to short title.
Section 15: Creates s. 736.1403, F.S., relating to application; principal place of administration.
Section 16: Creates s. 736.1405, F.S., relating to exclusions.
Section 17: Creates s. 736.1406, F.S., relating to power of trust director.
Section 18: Creates s. 736.1407, F.S., relating to limitations on trust director.
Section 19: Creates s. 736.1408, F.S., relating to duty and liability of trust director.
Section 20: Creates s. 736.1409, F.S., relating to duty and liability of directed trustee.
Section 21: Creates s. 736.141, F.S., relating to duty to provide information.
Section 22: Creates s. 736.1411, F.S., relating to no duty to monitor, inform, or advise.
Section 23: Creates s. 736.1412, F.S., relating to application to cotrustee.
Section 24: Creates s. 736.1413, F.S., relating to limitation of action against trust director.
STORAGE NAME: h0609b.IBS PAGE: 15
DATE: 3/26/2021
Section 25: Creates s. 736.1414, F.S., relating to defenses in action against trust director.
Section 26: Creates s. 736.1415, F.S., relating to jurisdiction over trust director.
Section 27: Creates s. 736.1416, F.S., relating to office of trust director.
Section 28: Creates Part XV of ch. 736, F.S., entitled “Community Property Trust Act”.
Section 29: Creates s. 736.1501, F.S., relating to short title.
Section 30: Creates s. 736.1502, F.S., relating to definitions.
Section 31: Creates s. 736.1503, F.S., relating to requirements for community property trust.
Section 32: Creates s. 736.1504, F.S., relating to agreement establishing community property trust;
amendments and revocation.
Section 33: Creates s. 736.1505, F.S., relating to classification of property as community property;
enforcement; duration; management and control; effect of distributions.
Section 34: Creates s. 736.1506, F.S., relating to satisfaction of obligations.
Section 35: Creates s. 736.1507, F.S., relating to death of a spouse.
Section 36: Creates s. 736.1508, F.S., relating to dissolution of marriage.
Section 37: Creates s. 736.1509, F.S., relating to right of child to support.
Section 38: Creates s. 736.151, F.S., relating to homestead property.
Section 39: Creates s. 736.1511, F.S., relating to application of Internal Revenue Code; community
property classified by another jurisdiction.
Section 40: Creates s. 736.1512, F.S., relating to unenforceable trusts.
Section 41: Amends s. 736.0802, F.S., relating to duty of loyalty.
Section 42: Amends s. 736.08125, F.S., relating to protection of successor trustees.
Section 43: Amends s. 738.104, F.S., relating to trustee’s power to adjust.
Section 44: Amends s. 744.3679, F.S., relating to simplified accounting procedures in certain cases.
Section 45: Directs the Division of Law Revision to replace the phrase “the effective date of this
section” wherever it occurs in this act with the date those sections become law.
Section 46: Provides for severability.
Section 47: Provides an effective date of July 1, 2021, except as otherwise expressly provided.

II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

A. FISCAL IMPACT ON STATE GOVERNMENT:

1. Revenues:
The bill may have a positive fiscal impact on state government by allowing additional wealth to be
managed by Florida corporate trustees, which may result in an increased number of fiduciary
commissions subject to the state’s corporate income tax. The bill may also encourage persons to
keep their assets in Florida rather than transferring such assets outside the state.

2. Expenditures:
None.

B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

1. Revenues:
None.

2. Expenditures:
None.

C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill may have a direct economic impact on the private sector by:
 Creating certainty regarding the extension of homestead protection after the devise of
homestead property.
 Giving Florida residents an opportunity to avail themselves of a federal income tax benefit for
community property.
STORAGE NAME: h0609b.IBS PAGE: 16
DATE: 3/26/2021
D. FISCAL COMMENTS:
None.

III. COMMENTS

A. CONSTITUTIONAL ISSUES:

1. Applicability of Municipality/County Mandates Provision:
Not Applicable. This bill does not appear to affect county or municipal governments.

2. Other:
None.

B. RULE-MAKING AUTHORITY:
Not applicable.

C. DRAFTING ISSUES OR OTHER COMMENTS:
None.

IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES

STORAGE NAME: h0609b.IBS PAGE: 17
DATE: 3/26/2021
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

1 A bill to be entitled
2 An act relating to estates and trusts; amending s.
3 69.031, F.S.; providing that a court may order that
4 certain property be placed with a financial
5 institution during the administration of an estate;
6 providing that a court shall allow certain officers to
7 post and maintain a bond for the value of certain
8 property; amending s. 732.507, F.S.; providing that
9 certain provisions of a will are void upon dissolution
10 of marriage; specifying when dissolution of marriage
11 occurs; providing applicability; amending s. 736.0103,
12 F.S.; providing and revising definitions; amending s.
13 736.0105, F.S.; providing that terms of a trust
14 prevail over the Florida Probate Code except for
15 certain duties of a trustee which are subject to
16 certain provisions; amending s. 736.0201, F.S.;
17 providing that certain proceedings to determine the
18 homestead status of real property owned by a trust may
19 be filed in the probate proceeding for the settlor's
20 estate and shall be governed by the Florida Probate
21 Rules; amending s. 736.0603, F.S.; providing that a
22 trustee may follow a direction of a settlor that is
23 contrary to the terms of the trust in certain
24 circumstances; amending s. 736.0703, F.S.; revising
25 provisions relating to duties and liabilities of

Page 1 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

26 cotrustees; repealing s. 736.0808, F.S., relating to
27 powers to direct; amending s. 736.1008, F.S.;
28 providing that certain claims relating to trust
29 disclosure documents are barred; amending s. 736.1017,
30 F.S.; providing that a trustee may furnish to a person
31 other than a beneficiary a certificate of trust
32 containing certain information; amending s. 736.1105,
33 F.S.; providing that the occurrence of certain
34 conditions does not revoke a revocable trust;
35 providing that certain provisions of a revocable trust
36 are void upon dissolution of marriage; specifying when
37 dissolution of marriage occurs; providing
38 applicability; creating s. 736.1109, F.S.; providing
39 for the descent of homestead property if a devise of
40 homestead under a trust violates the State
41 Constitution; providing that certain powers or
42 directions within a trust instrument do not subject an
43 interest in a protected homestead to certain claims,
44 expenses, or obligations; providing that title to
45 property that would otherwise qualify as protected
46 homestead shall remain vested in the trustee in
47 certain circumstances; providing applicability;
48 creating part XIV of chapter 736, F.S., entitled the
49 "Florida Uniform Directed Trust Act"; creating s.
50 736.1401, F.S.; providing a short title; creating s.

Page 2 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

51 736.1403, F.S.; providing applicability; providing
52 that terms of a directed trust that designate the
53 state as the principal place of administration are
54 valid and controlling in certain circumstances;
55 creating s. 736.1405, F.S.; providing a definition;
56 providing that this part does not apply to certain
57 powers except in certain circumstances; creating s.
58 736.1406, F.S.; providing for certain powers of a
59 trust director; creating s. 736.1407, F.S.; providing
60 that a trust director is subject to the same rules as
61 a trustee in a like position under similar
62 circumstances in the exercise of certain powers;
63 creating 736.1408, F.S.; providing duties and
64 liabilities of a trust director with respect to
65 certain powers and in certain circumstances;
66 authorizing the imposition of additional duties and
67 liabilities; creating s. 736.1409, F.S.; providing
68 duties and liabilities of a directed trustee with
69 respect to compliance with a trust director's exercise
70 or nonexercise of certain powers; authorizing a
71 directed trustee to apply to a court for directions
72 and pay attorney costs and fees from trust assets in
73 certain circumstances; authorizing the imposition of
74 additional duties and liabilities; creating s.
75 736.141, F.S.; requiring a trustee to provide certain

Page 3 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

76 information to a trust director; requiring a trust
77 director to provide certain information to a trustee
78 or another trust director and a qualified beneficiary;
79 providing that a trustee or a trust director acting in
80 reliance on certain information is not liable for a
81 breach of trust in certain circumstances; creating s.
82 736.1411, F.S.; providing that a trustee and a trust
83 director do not have certain duties unless the terms
84 of a trust provide otherwise; creating s. 736.1412,
85 F.S.; authorizing the terms of a trust to provide for
86 the appointment of more than one trustee with certain
87 powers; providing that trustees excluded from certain
88 powers shall act as directed trustees in certain
89 respects; providing liability and obligations of a
90 trustee or trustees with certain powers; creating s.
91 736.1413, F.S.; providing a limitations period for
92 certain actions commenced against a trust director;
93 creating s. 736.1414, F.S.; providing that a trust
94 director may assert the same defenses in an action as
95 a trustee in certain circumstances; creating s.
96 736.1415, F.S.; providing for personal jurisdiction in
97 the state over a trust director; creating s. 736.1416,
98 F.S.; providing that a trust director shall be
99 considered a trustee for the purposes of certain
100 provisions unless the terms of a trust provide

Page 4 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

101 otherwise; authorizing certain persons to make a
102 written demand on a person designated to serve as a
103 trust director in certain circumstances; requiring the
104 designated trust director to respond in writing within
105 a certain period; creating part XV of chapter 736,
106 F.S., entitled the "Community Property Trust Act";
107 creating s. 736.1501, F.S.; providing a short title;
108 creating s. 736.1502, F.S.: providing definitions;
109 creating s. 736.1503, F.S.; providing that an
110 arrangement is a community property trust in certain
111 circumstances; creating s. 736.1504, F.S.; authorizing
112 settlor spouses to agree upon certain conditions in an
113 agreement establishing a community property trust;
114 providing that a community property trust may be
115 amended in certain circumstances; providing that the
116 settlor spouses are the only qualified beneficiaries
117 of a community property trust; creating s. 736.1505,
118 F.S.; providing that settlor spouses may classify any
119 property as community property by transferring that
120 property to a community property trust regardless of
121 domicile; providing for enforceability and duration of
122 a community property trust; providing that the right
123 to manage and control certain property is determined
124 by the terms of the trust agreement; providing the
125 effect of distributions from a community property

Page 5 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

126 trust; creating s. 736.1506, F.S.; providing for the
127 satisfaction of obligations incurred by one or both
128 spouses from a community property trust; creating s.
129 736.1507, F.S.; providing for the disposition or
130 distribution of certain property upon the death of a
131 spouse; creating s. 736.1508, F.S.; providing for the
132 termination of a community property trust upon
133 dissolution of marriage; creating s. 736.1509, F.S.;
134 providing that a community property trust may not
135 adversely affect certain rights of a child; creating
136 s. 736.151, F.S.; providing that certain property held
137 in a community property trust qualifies as homestead
138 property; creating s. 736.1511, F.S.; providing for
139 the application of the Internal Revenue Code to a
140 community property trust; creating s. 736.1512, F.S.;
141 providing that a community property trust is not
142 enforceable in certain circumstances; amending ss.
143 736.0802, 736.08125, and 738.104, F.S.; conforming
144 cross-references; amending s. 744.3679, F.S.;
145 conforming a provision to changes made by the act;
146 providing a directive to the Division of Law Revision;
147 providing for severability; providing effective dates.
148
149 Be It Enacted by the Legislature of the State of Florida:
150

Page 6 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

151 Section 1. Effective upon this act becoming a law, section
152 69.031, Florida Statutes, is amended to read:
153 69.031 Designated financial institutions for property
154 assets in hands of guardians, curators, administrators,
155 trustees, receivers, or other officers.—
156 (1) When it is expedient in the judgment of any court
157 having jurisdiction of any estate in process of administration
158 by any guardian, curator, executor, administrator, trustee,
159 receiver, or other officer, because the size of the bond
160 required of the officer is burdensome or for other cause, the
161 court may order part or all of the personal property assets of
162 the estate placed with a bank, trust company, or savings and
163 loan association (which savings and loan association is a member
164 of the Federal Savings and Loan Insurance Corporation and doing
165 business in this state) designated by the court, consideration
166 being given to any bank, trust company or savings and loan
167 association proposed by the officer. Notwithstanding the
168 foregoing, in probate proceedings and in accordance with s.
169 733.402, the court shall allow the officer at any time to elect
170 to post and maintain bond for the value of the personal
171 property, or such other reasonable amount determined by the
172 court, whereupon the court shall vacate or terminate any order
173 establishing the depository. When the property is assets are
174 placed with the designated financial institution, it shall file
175 a receipt therefor in the name of the estate and give the

Page 7 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

176 officer a copy. Such receipt shall acknowledge the property
177 assets received by the financial institution. All interest,
178 dividends, principal and other debts collected by the financial
179 institution on account thereof shall be held by the financial
180 institution in safekeeping, subject to the instructions of the
181 officer authorized by order of the court directed to the
182 financial institution.
183 (2) Accountings shall be made to the officer at reasonably
184 frequent intervals. After the receipt for the original property
185 assets has been filed by the financial institution, the court
186 shall waive the bond given or to be given or reduce it so that
187 it shall apply only to the estate remaining in the hands of the
188 officer, whichever the court deems proper.
189 (3) When the court has ordered any property assets of an
190 estate to be placed with a designated financial institution, any
191 person or corporation having possession or control of any of the
192 property assets, or owing interest, dividends, principal or
193 other debts on account thereof, shall pay and deliver such
194 property assets, interest, dividends, principal and other debts
195 to the financial institution on its demand whether the officer
196 has duly qualified or not, and the receipt of the financial
197 institution relieves the person or corporation from further
198 responsibility therefor.
199 (4) Any bank, trust company, or savings and loan
200 association which is designated under this section, may accept

Page 8 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

201 or reject the designation in any instance, and shall file its
202 acceptance or rejection with the court making the designation
203 within 15 days after actual knowledge of the designation comes
204 to the attention of the financial institution, and if the
205 financial institution accepts, it shall be allowed a reasonable
206 amount for its services and expenses which the court may allow
207 as a charge against the property assets placed with the
208 financial institution.
209 Section 2. Effective upon this act becoming a law, section
210 732.507, Florida Statutes, is amended to read:
211 732.507 Effect of subsequent marriage, birth, adoption, or
212 dissolution of marriage.—
213 (1) Neither subsequent marriage, birth, nor adoption of
214 descendants shall revoke the prior will of any person, but the
215 pretermitted child or spouse shall inherit as set forth in ss.
216 732.301 and 732.302, regardless of the prior will.
217 (2) Any provision of a will executed by a married person
218 that affects the testator's spouse is of that person shall
219 become void upon dissolution of the marriage of the testator and
220 the spouse, whether the marriage occurred before or after the
221 execution of such will. Upon dissolution of marriage the divorce
222 of that person or upon the dissolution or annulment of the
223 marriage. After the dissolution, divorce, or annulment, the will
224 shall be administered and construed as if the former spouse had
225 died at the time of the dissolution of marriage, divorce, or

Page 9 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

226 annulment of the marriage, unless the will or the dissolution or
227 divorce judgment expressly provides otherwise.
228 (a) Dissolution of marriage occurs at the time the
229 decedent's marriage is judicially dissolved or declared invalid
230 by court order.
231 (b) This subsection does not invalidate a provision of a
232 will:
233 1. Executed by the testator after the dissolution of the
234 marriage;
235 2. If there is a specific intention to the contrary stated
236 in the will; or
237 3. If the dissolution of marriage judgment expressly
238 provides otherwise.
239 (3) This section applies to wills of decedents who die on
240 or after the effective date of this section.
241 Section 3. Subsections (6) through (13), (14) through
242 (20), and (22) and (23) of section 736.0103, Florida Statutes,
243 are renumbered as subsections (8) through (15), (17) through
244 (23), and (26) and (27), respectively, present subsection (21)
245 is amended, and new subsections (6), (7), (16), and (25) are
246 added to that section, to read:
247 736.0103 Definitions.—Unless the context otherwise
248 requires, in this code:
249 (6) "Directed trust" means a trust for which the terms of
250 the trust grant a power of direction.

Page 10 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

251 (7) "Directed trustee" means a trustee that is subject to
252 a trust director's power of direction.
253 (16) "Power of direction" means a power over a trust
254 granted to a person by the terms of the trust to the extent the
255 power is exercisable while the person is not serving as a
256 trustee. The term includes a power over the investment,
257 management, or distribution of trust property, a power to amend
258 a trust instrument or terminate a trust, or a power over other
259 matters of trust administration. The term excludes the powers
260 listed in s. 736.1405(2).
261 (24)(21) "Terms of a trust" means:
262 (a) Except as otherwise provided in paragraph (b), the
263 manifestation of the settlor's intent regarding a trust's
264 provisions as:
265 1. Expressed in the trust instrument; or
266 2. Established by other evidence that would be admissible
267 in a judicial proceeding; or
268 (b) The trust's provisions as established, determined, or
269 amended by:
270 1. A trustee or trust director in accordance with
271 applicable law;
272 2. Court order; or
273 3. A nonjudicial settlement agreement under s. 736.0111
274 the manifestation of the settlor's intent regarding a trust's
275 provisions as expressed in the trust instrument or as may be

Page 11 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

276 established by other evidence that would be admissible in a
277 judicial proceeding.
278 (25) "Trust director" means a person who is granted a
279 power of direction by the terms of a trust to the extent the
280 power is exercisable while the person is not serving as a
281 trustee. The person is a trust director whether or not the terms
282 of the trust refer to the person as a trust director and whether
283 or not the person is a beneficiary or settlor of the trust.
284 Section 4. Paragraph (b) of subsection (2) of section
285 736.0105, Florida Statutes, is amended to read:
286 736.0105 Default and mandatory rules.—
287 (2) The terms of a trust prevail over any provision of
288 this code except:
289 (b) Subject to ss. 736.1409, 736.1411, and 736.1412, the
290 duty of the trustee to act in good faith and in accordance with
291 the terms and purposes of the trust and the interests of the
292 beneficiaries.
293 Section 5. Subsection (1) of section 736.0201, Florida
294 Statutes, is amended and subsection (7) is added to that section
295 to read:
296 736.0201 Role of court in trust proceedings.—
297 (1) Except as provided in subsections (5), and (6), and
298 (7) and s. 736.0206, judicial proceedings concerning trusts
299 shall be commenced by filing a complaint and shall be governed
300 by the Florida Rules of Civil Procedure.

Page 12 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

301 (7) A proceeding to determine the homestead status of real
302 property owned by a trust may be filed in the probate proceeding
303 for the settlor's estate if the settlor was treated as the owner
304 of the interest held in the trust under s. 732.4015. The
305 proceeding shall be governed by the Florida Probate Rules.
306 Section 6. Subsection (3) is added to section 736.0603,
307 Florida Statutes, to read:
308 736.0603 Settlor's powers; powers of withdrawal.—
309 (3) Subject to ss. 736.0403(2) and 736.0602(3)(a), the
310 trustee may follow a direction of the settlor that is contrary
311 to the terms of the trust while a trust is revocable.
312 Section 7. Subsections (3), (7), and (9) of section
313 736.0703, Florida Statutes, are amended to read:
314 736.0703 Cotrustees.—
315 (3) Subject to s. 736.1412, a cotrustee must participate
316 in the performance of a trustee's function unless the cotrustee
317 is unavailable to perform the function because of absence,
318 illness, disqualification under other provision of law, or other
319 temporary incapacity or the cotrustee has properly delegated the
320 performance of the function to another cotrustee.
321 (7) Except as otherwise provided in s. 736.1412 subsection
322 (9), each cotrustee shall exercise reasonable care to:
323 (a) Prevent a cotrustee from committing a breach of trust.
324 (b) Compel a cotrustee to redress a breach of trust.
325 (9) If the terms of a trust provide for the appointment of

Page 13 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

326 more than one trustee but confer upon one or more of the
327 trustees, to the exclusion of the others, the power to direct or
328 prevent specified actions of the trustees, the excluded trustees
329 shall act in accordance with the exercise of the power. Except
330 in cases of willful misconduct on the part of the excluded
331 trustee, an excluded trustee is not liable, individually or as a
332 fiduciary, for any consequence that results from compliance with
333 the exercise of the power. An excluded trustee does not have a
334 duty or an obligation to review, inquire, investigate, or make
335 recommendations or evaluations with respect to the exercise of
336 the power. The trustee or trustees having the power to direct or
337 prevent actions of the excluded trustees shall be liable to the
338 beneficiaries with respect to the exercise of the power as if
339 the excluded trustees were not in office and shall have the
340 exclusive obligation to account to and to defend any action
341 brought by the beneficiaries with respect to the exercise of the
342 power. The provisions of s. 736.0808(2) do not apply if the
343 person entrusted with the power to direct the actions of the
344 excluded trustee is also a cotrustee.
345 Section 8. Section 736.0808, Florida Statutes, is
346 repealed.
347 Section 9. Subsection (7) of section 736.1008, Florida
348 Statutes, is renumbered as subsection (8), paragraph (a) of
349 subsection (1), subsection (2), and paragraphs (a) and (c) of
350 subsection (4) are amended, and new subsection (7) is added to

Page 14 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

351 that section, to read:
352 736.1008 Limitations on proceedings against trustees.—
353 (1) Except as provided in subsection (2), all claims by a
354 beneficiary against a trustee for breach of trust are barred as
355 provided in chapter 95 as to:
356 (a) All matters adequately disclosed in a trust disclosure
357 document issued by the trustee or a trust director, with the
358 limitations period beginning on the date of receipt of adequate
359 disclosure.
360 (2) Unless sooner barred by adjudication, consent, or
361 limitations, a beneficiary is barred from bringing an action
362 against a trustee for breach of trust with respect to a matter
363 that was adequately disclosed in a trust disclosure document
364 unless a proceeding to assert the claim is commenced within 6
365 months after receipt from the trustee or a trust director of the
366 trust disclosure document or a limitation notice that applies to
367 that disclosure document, whichever is received later.
368 (4) As used in this section, the term:
369 (a) "Trust disclosure document" means a trust accounting
370 or any other written report of the trustee or a trust director.
371 A trust disclosure document adequately discloses a matter if the
372 document provides sufficient information so that a beneficiary
373 knows of a claim or reasonably should have inquired into the
374 existence of a claim with respect to that matter.
375 (c) "Limitation notice" means a written statement of the

Page 15 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

376 trustee or a trust director that an action by a beneficiary
377 against the trustee for breach of trust based on any matter
378 adequately disclosed in a trust disclosure document may be
379 barred unless the action is commenced within 6 months after
380 receipt of the trust disclosure document or receipt of a
381 limitation notice that applies to that trust disclosure
382 document, whichever is later. A limitation notice may but is not
383 required to be in the following form: "An action for breach of
384 trust based on matters disclosed in a trust accounting or other
385 written report of the trustee or a trust director may be subject
386 to a 6-month statute of limitations from the receipt of the
387 trust accounting or other written report. If you have questions,
388 please consult your attorney."
389 (7) Any claim barred against a trustee or trust director
390 under this section is also barred against the directors,
391 officers, and employees acting for the trustee.
392 Section 10. Paragraphs (e), (f), and (g) of subsection (1)
393 of section 736.1017, Florida Statutes, are redesignated as
394 paragraphs (f), (g), and (h), respectively, and new paragraph
395 (e) is added to that subsection, to read:
396 736.1017 Certification of trust.—
397 (1) Instead of furnishing a copy of the trust instrument
398 to a person other than a beneficiary, the trustee may furnish to
399 the person a certification of trust containing the following
400 information:

Page 16 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

401 (e) Whether the trust contains any powers of direction,
402 and if so, the identity of the current trust directors, the
403 trustee powers subject to a power of direction, and whether the
404 trust directors have directed or authorized the trustee to
405 engage in the proposed transaction for which the certification
406 of trust was issued.
407 Section 11. Effective upon this act becoming a law,
408 section 736.1105, Florida Statutes, is amended to read:
409 (Substantial rewording of section. See
410 s. 736.1105, F.S., for present text.)
411 736.1105 Effect of subsequent marriage, birth, adoption,
412 or dissolution of marriage.—
413 (1) Neither subsequent marriage, birth, nor adoption of
414 descendants shall revoke the revocable trust of any person.
415 (2) Any provision of a revocable trust that affects the
416 settlor's spouse is void upon dissolution of the marriage of the
417 settlor and the spouse, whether the marriage occurred before or
418 after the execution of such revocable trust. Upon dissolution of
419 marriage, the revocable trust shall be construed as if the
420 spouse had died at the time of the dissolution of marriage.
421 (a) Dissolution of marriage occurs at the time the
422 decedent's marriage is judicially dissolved or declared invalid
423 by court order.
424 (b) This subsection does not invalidate a provision of a
425 revocable trust:

Page 17 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

426 1. Executed by the settlor after the dissolution of the
427 marriage;
428 2. If there is a specific intention to the contrary stated
429 in the revocable trust; or
430 3. If the dissolution of marriage judgment expressly
431 provides otherwise.
432 (3) This section applies to revocable trusts of decedents
433 who die on or after the effective date of this section.
434 Section 12. Section 736.1109, Florida Statutes, is created
435 to read:
436 736.1109 Testamentary and revocable trusts; homestead
437 protections.—
438 (1) If a devise of homestead under a trust violates the
439 limitations on the devise of homestead in s. 4(c), Art. X of the
440 State Constitution, title shall pass as provided in s. 732.401
441 at the moment of death.
442 (2) A power of sale or general direction to pay debts,
443 expenses and claims within the trust instrument does not subject
444 an interest in the protected homestead to the claims of
445 decedent's creditors, expenses of administration, and
446 obligations of the decedent's estate as provided in s.
447 736.05053.
448 (3) If a trust directs the sale of property that would
449 otherwise qualify as protected homestead, and the property is
450 not subject to the constitutional limitations on the devise of

Page 18 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

451 homestead under the Florida Constitution, title shall remain
452 vested in the trustee and subject to the provisions of the
453 trust.
454 (4) This section applies only to trusts described in s.
455 733.707(3) and to testamentary trusts.
456 (5) This section is intended to clarify existing law and
457 applies to the administration of trusts and estates of decedents
458 who die before, on, or after July 1, 2021.
459 Section 13. Part XIV of chapter 736, Florida Statutes,
460 consisting of ss. 736.1401-736.1416, Florida Statutes, is
461 created and entitled the "Florida Uniform Directed Trust Act."
462 Section 14. Section 736.1401, Florida Statutes, is created
463 to read:
464 736.1401 Short title.—This part may be cited as the
465 "Florida Uniform Directed Trust Act."
466 Section 15. Section 736.1403, Florida Statutes, is created
467 to read:
468 736.1403 Application; principal place of administration.—
469 (1) This part applies to a trust subject to this chapter,
470 whenever created, that has its principal place of administration
471 in the state, subject to the following rules:
472 (a) If the trust was created before July 1, 2021, this
473 part applies only to a decision or action occurring on or after
474 July 1, 2021.
475 (b) If the principal place of administration of the trust

Page 19 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

476 is changed to the state on or after July 1, 2021, this part
477 applies only to a decision or action occurring on or after the
478 date of the change.
479 (2) In addition to the provisions of s. 736.0108, in a
480 directed trust, terms of the trust that designate the principal
481 place of administration of the trust in the state are valid and
482 controlling if a trust director's principal place of business is
483 located in or a trust director is a resident of the state.
484 Section 16. Section 736.1405, Florida Statutes, is created
485 to read:
486 736.1405 Exclusions.—
487 (1) As used in this section, the term "power of
488 appointment" means a power that enables a person acting in a
489 nonfiduciary capacity to designate a recipient of an ownership
490 interest in or another power of appointment over trust property.
491 (2) Unless the terms of a trust expressly provide
492 otherwise by specific reference to this part, section, or
493 paragraph, this part does not apply to:
494 (a) A power of appointment;
495 (b) A power to appoint or remove a trustee or trust
496 director;
497 (c) A power of a settlor over a trust while the trust is
498 revocable by that settlor;
499 (d) A power of a beneficiary over a trust to the extent
500 the exercise or nonexercise of the power affects the beneficial

Page 20 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

501 interest of:
502 1. The beneficiary; or
503 2. Another beneficiary represented by the beneficiary
504 under ss. 736.0301-736.0305 with respect to the exercise or
505 nonexercise of the power;
506 (e) A power over a trust if the terms of the trust provide
507 that the power is held in a nonfiduciary capacity; and
508 1. The power must be held in a nonfiduciary capacity to
509 achieve the settlor's tax objectives under the United States
510 Internal Revenue Code of 1986, as amended, and regulations
511 issued thereunder, as amended; or
512 2. It is a power to reimburse the settlor for all or a part
513 of the settlor's income tax liabilities attributable to the
514 income of the trust; or
515 (f) A power to add or to release a power under the trust
516 instrument if the power subject to addition or release causes
517 the settlor to be treated as the owner of all or any portion of
518 the trust for federal income tax purposes.
519 (3) Unless the terms of a trust provide otherwise, a power
520 granted to a person other than a trustee:
521 (a) To designate a recipient of an ownership interest in
522 trust property, including a power to terminate a trust, is a
523 power of appointment and not a power of direction.
524 (b) To create, modify, or terminate a power of
525 appointment, is a power of direction and not a power of

Page 21 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

526 appointment, except a power to create a power of appointment
527 that is an element of a broader power to affect an ownership
528 interest in trust property beyond the mere creation of a power
529 of appointment, such as a power to appoint trust property in
530 further trust, is a power of appointment and not a power of
531 direction.
532 Section 17. Section 736.1406, Florida Statutes, is created
533 to read:
534 736.1406 Power of trust director.—
535 (1) Subject to s. 736.1407, the terms of a trust may grant
536 a power of direction to a trust director.
537 (2) A power of direction includes only those powers
538 granted by the terms of the trust.
539 (3) Unless the terms of a trust provide otherwise:
540 (a) A trust director may exercise any further power
541 appropriate to the exercise or nonexercise of a power of
542 direction granted to the trust director under subsection (1);
543 and
544 (b) Trust directors with joint powers must act by majority
545 decision.
546 Section 18. Section 736.1407, Florida Statutes, is created
547 to read:
548 736.1407 Limitations on trust director.—A trust director
549 is subject to the same rules as a trustee in a like position and
550 under similar circumstances in the exercise or nonexercise of a

Page 22 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

551 power of direction or further power under s. 736.1406(3)(a)
552 regarding:
553 (1) A payback provision in the terms of a trust necessary
554 to comply with the reimbursement requirements of s. 1917 of the
555 Social Security Act, 42 U.S.C. s. 1396p(d)(4)(A), as amended,
556 and regulations issued thereunder, as amended.
557 (2) A charitable interest in the trust, including notice
558 regarding the interest to the Attorney General.
559 Section 19. Section 736.1408, Florida Statutes, is created
560 to read:
561 736.1408 Duty and liability of trust director.—
562 (1) Subject to subsection (2), with respect to a power of
563 direction or further power under s. 736.1406(3)(a):
564 (a) A trust director has the same fiduciary duty and
565 liability in the exercise or nonexercise of the power:
566 1. If the power is held individually, as a sole trustee in
567 a like position and under similar circumstances; or
568 2. If the power is held jointly with a trustee or another
569 trust director, as a cotrustee in a like position and under
570 similar circumstances.
571 (b) The terms of the trust may vary the trust director's
572 duty or liability to the same extent the terms of the trust may
573 vary the duty or liability of a trustee in a like position and
574 under similar circumstances.
575 (2) Unless the terms of a trust provide otherwise, if a

Page 23 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

576 trust director is licensed, certified, or otherwise authorized
577 or permitted by law other than this part to provide health care
578 in the ordinary course of the trust director's business or
579 practice of a profession, to the extent the trust director acts
580 in that capacity the trust director has no duty or liability
581 under this part.
582 (3) The terms of a trust may impose a duty or liability on
583 a trust director in addition to the duties and liabilities under
584 this section.
585 Section 20. Section 736.1409, Florida Statutes, is created
586 to read:
587 736.1409 Duty and liability of directed trustee.—
588 (1) Subject to subsection (2), a directed trustee shall
589 take reasonable action to comply with a trust director's
590 exercise or nonexercise of a power of direction or further power
591 under s. 736.1406(3)(a) and the trustee is not liable for such
592 reasonable action.
593 (2) A directed trustee may not comply with a trust
594 director's exercise or nonexercise of a power of direction or
595 further power under s. 736.1406(3)(a) to the extent that by
596 complying the trustee would engage in willful misconduct.
597 (3) Before complying with a trust director's exercise of a
598 power of direction, the directed trustee shall determine whether
599 or not the exercise is within the scope of the trust director's
600 power of direction. The exercise of a power of direction is not

Page 24 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

601 outside the scope of a trust director's power of direction
602 merely because the exercise constitutes or may constitute a
603 breach of trust.
604 (4) An exercise of a power of direction under which a
605 trust director may release a trustee or another trust director
606 from liability for breach of trust is not effective if:
607 (a) The breach involved the trustee's or other director's
608 willful misconduct;
609 (b) The release was induced by improper conduct of the
610 trustee or other director in procuring the release; or
611 (c) At the time of the release, the trust director did not
612 know the material facts relating to the breach.
613 (5) A directed trustee that has reasonable doubt about its
614 duty under this section may apply to the court for instructions,
615 with attorney fees and costs to be paid from assets of the trust
616 as provided in this code.
617 (6) The terms of a trust may impose a duty or liability on
618 a directed trustee in addition to the duties and liabilities
619 under this part.
620 Section 21. Section 736.141, Florida Statutes, is created
621 to read:
622 736.141 Duty to provide information.—
623 (1) Subject to s. 736.1411, a trustee shall provide
624 information to a trust director to the extent the information is
625 reasonably related to the powers or duties of the trust

Page 25 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

626 director.
627 (2) Subject to s. 736.1411, a trust director shall provide
628 information to a trustee or another trust director to the extent
629 the information is reasonably related to the powers or duties of
630 the trustee or other trust director.
631 (3) A trustee that acts in reliance on information
632 provided by a trust director is not liable for a breach of trust
633 to the extent the breach resulted from the reliance, unless by
634 so acting the trustee engages in willful misconduct.
635 (4) A trust director that acts in reliance on information
636 provided by a trustee or another trust director is not liable
637 for a breach of trust to the extent the breach resulted from the
638 reliance, unless by so acting the trust director engages in
639 willful misconduct.
640 (5) A trust director shall provide information within the
641 trust director's knowledge or control to a qualified beneficiary
642 upon a written request of a qualified beneficiary to the extent
643 the information is reasonably related to the powers or duties of
644 the trust director.
645 Section 22. Section 736.1411, Florida Statutes, is created
646 to read:
647 736.1411 No duty to monitor, inform, or advise.—
648 (1) Notwithstanding s. 736.1409(1), unless the terms of a
649 trust provide otherwise:
650 (a) A trustee does not have a duty to:

Page 26 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

651 1. Monitor a trust director; or
652 2. Inform or give advice to a settlor, beneficiary,
653 trustee, or trust director concerning an instance in which the
654 trustee might have acted differently than the trust director.
655 (b) By taking an action described in paragraph (a), a
656 trustee does not assume the duty excluded by paragraph (a).
657 (2) Notwithstanding s. 736.1408(1), unless the terms of a
658 trust provide otherwise:
659 (a) A trust director does not have a duty to:
660 1. Monitor a trustee or another trust director; or
661 2. Inform or give advice to a settlor, beneficiary,
662 trustee, or another trust director concerning an instance in
663 which the trust director might have acted differently than a
664 trustee or another trust director.
665 (b) By taking an action described in paragraph (a), a
666 trust director does not assume the duty excluded by paragraph
667 (a).
668 Section 23. Section 736.1412, Florida Statutes, is created
669 to read:
670 736.1412 Application to cotrustee.—
671 (1) The terms of a trust may provide for the appointment
672 of more than one trustee but confer upon one or more of the
673 trustees, to the exclusion of the others, the power to direct or
674 prevent specified actions of the trustees.
675 (2) The excluded trustees shall act in accordance with the

Page 27 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

676 exercise of the power in the manner, and with the same duty and
677 liability, as directed trustees with respect to a trust
678 director's power of direction under ss. 736.1409, 736.141, and
679 736.1411.
680 (3) The trustee or trustees having the power to direct or
681 prevent actions of the excluded trustees shall be liable to the
682 beneficiaries with respect to the exercise of the power as if
683 the excluded trustees were not in office and shall have the
684 exclusive obligation to account to and to defend any action
685 brought by the beneficiaries with respect to the exercise of the
686 power.
687 Section 24. Section 736.1413, Florida Statutes, is created
688 to read:
689 736.1413 Limitation of action against trust director.—
690 (1) An action against a trust director for breach of trust
691 must be commenced within the same limitation period as under s.
692 736.1008 in an action for breach of trust against a trustee in a
693 like position and under similar circumstances.
694 (2) A trust accounting or any other written report of a
695 trustee or a trust director has the same effect on the
696 limitation period for an action against a trust director for
697 breach of trust that such trust accounting or written report
698 would have under s. 736.1008 in an action for breach of trust
699 against a trustee in a like position and under similar
700 circumstances.

Page 28 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

701 Section 25. Section 736.1414, Florida Statutes, is created
702 to read:
703 736.1414 Defenses in action against trust director.—In an
704 action against a trust director for breach of trust, the trust
705 director may assert the same defenses a trustee in a like
706 position and under similar circumstances could assert in an
707 action for breach of trust against the trustee.
708 Section 26. Section 736.1415, Florida Statutes, is created
709 to read:
710 736.1415 Jurisdiction over trust director.—
711 (1) By accepting appointment as a trust director of a
712 trust subject to this part, the trust director submits to the
713 personal jurisdiction of the courts of the state regarding any
714 matter related to a power or duty of the trust director.
715 (2) This section does not preclude other methods of
716 obtaining jurisdiction over a trust director.
717 Section 27. Section 736.1416, Florida Statutes, is created
718 to read:
719 736.1416 Office of trust director.—
720 (1) Unless the terms of a trust provide otherwise, a trust
721 director shall be considered a trustee for purposes of the
722 following:
723 (a) Role of court under s. 736.0201.
724 (b) Proceedings for review of employment of agents and
725 review of compensation of trustee and employees of a trust under

Page 29 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

726 s. 736.0206.
727 (c) Representation by holder of power of appointment under
728 s. 736.0302(4).
729 (d) Designated representative under s. 736.0306(2).
730 (e) Requirements for creation of a trust under s.
731 736.0402(3).
732 (f) As to allowing application by the trust director for
733 judicial modification, construction, or termination under s.
734 736.04113, s. 736.04114, s. 736.04115, or s. 736.0414(2) if the
735 trust director is so authorized by the terms of the trust.
736 (g) Discretionary trusts and the effect of a standard
737 under s. 736.0504.
738 (h) Creditors' claims against settlor under s.
739 736.0505(1)(c).
740 (i) Trustee's duty to pay expenses and obligations of a
741 settlor's estate under s. 736.05053(4).
742 (j) Acceptance or declination under s. 736.0701.
743 (k) Giving of bond to secure performance under s.
744 736.0702.
745 (l) Vacancy and appointment of successor under s.
746 736.0704.
747 (m) Resignation under s. 736.0705.
748 (n) Removal under s. 736.0706, but not to give the trust
749 director the power to request removal of a trustee.
750 (o) Reasonable compensation under s. 736.0708.

Page 30 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

751 (p) Reimbursement of expenses under s. 736.0709.
752 (q) Payment of costs or attorney fees under s.
753 736.0802(10), if the trust director has a power of direction, or
754 a further power to direct, the payment of such costs or attorney
755 fees under s. 736.1406(2) or (3)(a).
756 (r) Discretionary power and tax savings provisions under
757 s. 736.0814.
758 (s) Administration pending outcome of contest or other
759 proceeding under s. 736.08165.
760 (t) Applicability of chapter 518 under s. 736.0901.
761 (u) Nonapplication of prudent investor rule under s.
762 736.0902.
763 (v) Remedies for breach of trust under s. 736.1001.
764 (w) Damages for breach of trust under s. 736.1002.
765 (x) Damages in absence of breach under s. 736.1003.
766 (y) Attorney's fees and costs under s. 736.1004.
767 (z) Trustee's attorney fees under s. 736.1007(5), (6), and
768 (7).
769 (aa) Reliance on a trust instrument under s. 736.1009.
770 (bb) Events affecting administration under s. 736.1010.
771 (cc) Exculpation under s. 736.1011.
772 (dd) Beneficiary's consent, release, or ratification under
773 s. 736.1012.
774 (ee) Limitations on actions against certain trusts under
775 s. 736.1014.

Page 31 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

776 (2) If a person has not accepted a trust directorship
777 under the terms of the trust or under s. 736.0701 or a trustee,
778 settlor, or a qualified beneficiary of the trust is uncertain
779 whether such acceptance has occurred, a trustee, settlor, or a
780 qualified beneficiary of the trust may make a written demand on
781 a person designated to serve as a trust director, with a written
782 copy to the trustees, to accept or confirm prior acceptance of
783 the trust directorship in writing. A written acceptance, written
784 acknowledgment of prior acceptance, or written declination of
785 the trust directorship shall be delivered by the designated
786 trust director within 60 days after receipt of such demand to
787 all trustees, qualified beneficiaries, and the settlor if
788 living.
789 Section 28. Part XV of chapter 736, Florida Statutes,
790 consisting of ss. 736.1501-736.1512, Florida Statutes, is
791 created and entitled the "Community Property Trust Act."
792 Section 29. Section 736.1501, Florida Statutes, is created
793 to read:
794 736.1501 Short title.—This part may be cited as the
795 "Community Property Trust Act."
796 Section 30. Section 736.1502, Florida Statutes, is created
797 to read:
798 736.1502 Definitions.—Unless the context otherwise
799 requires, as used in this part:
800 (1) "Community property" means the property and the

Page 32 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

801 appreciation of and income from the property owned by a
802 qualified trustee of a community property trust during the
803 marriage of the settlor spouses. The property owned by a
804 community property trust pursuant to this part and the
805 appreciation of and income from such property shall be deemed to
806 be community property for purposes of general law.
807 (2) "Community property trust" means an express trust that
808 complies with s. 736.1503 and is created on or after July 1,
809 2021.
810 (3) "Decree" means a judgment or other order of a court of
811 competent jurisdiction.
812 (4) "Dissolution" means either:
813 (a) Termination of a marriage by a decree of dissolution,
814 divorce, annulment or declaration of invalidity; or
815 (b) Entry of a decree of legal separation maintenance.
816 (5) "During marriage" means a period that begins at
817 marriage and ends upon the dissolution of marriage or upon the
818 death of a spouse.
819 (6) "Qualified trustee" means either:
820 (a) A natural person who is a resident of the state; or
821 (b) A company authorized to act as a trustee in the state.
822
823 A qualified trustee's powers include, but are not limited to,
824 maintaining records for the trust on an exclusive or a
825 nonexclusive basis and preparing or arranging for the

Page 33 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

826 preparation of, on an exclusive or a nonexclusive basis, any
827 income tax returns that must be filed by the trust.
828 (7) "Settlor spouses" means a married couple who establish
829 a community property trust pursuant to this part.
830 Section 31. Section 736.1503, Florida Statutes, is created
831 to read:
832 736.1503 Requirements for community property trust.—An
833 arrangement is a community property trust if one or both settlor
834 spouses transfer property to a trust that:
835 (1) Expressly declares that the trust is a community
836 property trust within the meaning of this part.
837 (2) Has at least one trustee who is a qualified trustee,
838 provided that both spouses or either spouse also may be a
839 trustee.
840 (3) Is signed by both settlor spouses consistent with the
841 formalities required for the execution of a trust under this
842 chapter.
843 (4) Contains substantially the following language in
844 capital letters at the beginning of the community property trust
845 agreement:
846
847 THE CONSEQUENCES OF THIS COMMUNITY PROPERTY TRUST MAY
848 BE VERY EXTENSIVE, INCLUDING, BUT NOT LIMITED TO, YOUR
849 RIGHTS WITH RESPECT TO CREDITORS AND OTHER THIRD
850 PARTIES, AND YOUR RIGHTS WITH YOUR SPOUSE DURING THE

Page 34 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

851 COURSE OF YOUR MARRIAGE, AT THE TIME OF A DIVORCE, AND
852 UPON THE DEATH OF YOU OR YOUR SPOUSE. ACCORDINGLY,
853 THIS TRUST AGREEMENT SHOULD ONLY BE SIGNED AFTER
854 CAREFUL CONSIDERATION. IF YOU HAVE ANY QUESTIONS ABOUT
855 THIS TRUST AGREEMENT, YOU SHOULD SEEK COMPETENT AND
856 INDEPENDENT LEGAL ADVICE.
857 Section 32. Section 736.1504, Florida Statutes, is created
858 to read:
859 736.1504 Agreement establishing community property trust;
860 amendments and revocation.—
861 (1) In the agreement establishing a community property
862 trust, the settlor spouses may agree upon:
863 (a) The rights and obligations in the property transferred
864 to the trust, notwithstanding when and where the property is
865 acquired or located.
866 (b) The management and control of the property transferred
867 into the trust.
868 (c) The disposition of the property transferred to the
869 trust on dissolution, death, or the occurrence or nonoccurrence
870 of another event, subject to ss. 736.1507 and 736.1508.
871 (d) Whether the trust is revocable or irrevocable.
872 (e) Any other matter that affects the property transferred
873 to the trust and does not violate public policy or general law
874 imposing a criminal penalty, or result in the property not being
875 treated as community property under the laws of any

Page 35 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

876 jurisdiction.
877 (2) In the event of the death of a settlor spouse, the
878 surviving spouse may amend a community property trust regarding
879 the disposition of that spouse's one-half share of the community
880 property, regardless of whether the agreement provides that the
881 community property trust is irrevocable.
882 (3) A community property trust may be amended or revoked
883 by the settlor spouses unless the agreement itself specifically
884 provides that the community property trust is irrevocable.
885 (4) Notwithstanding any other provision of this code, the
886 settlor spouses shall be deemed to be the only qualified
887 beneficiaries of a community property trust until the death of
888 one of the settlor spouses, regardless of whether the trust is
889 revocable or irrevocable. After the death of one of the settlor
890 spouses, the surviving spouse shall be deemed to be the only
891 qualified beneficiary as to his or her share of the community
892 property trust.
893 Section 33. Section 736.1505, Florida Statutes, is created
894 to read:
895 736.1505 Classification of property as community property;
896 enforcement; duration; management and control; effect of
897 distributions.—
898 (1) Whether both, one, or neither is domiciled in the
899 state, settlor spouses may classify any or all of their property
900 as community property by transferring that property to a

Page 36 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

901 community property trust and providing in the trust that the
902 property is community property pursuant to this part.
903 (2) A community property trust is enforceable without
904 consideration.
905 (3) All property owned by a community property trust will
906 be community property under the laws of the state during the
907 marriage of the settlor spouses.
908 (4) The right to manage and control property that is
909 transferred to a community property trust is determined by the
910 terms of the trust agreement.
911 (5) When property is distributed from a community property
912 trust, the property shall no longer constitute community
913 property within the meaning of this part, provided that
914 community property as classified by a jurisdiction other than
915 the state retains its character as community property to the
916 extent otherwise provided by ss. 732.216-732.228.
917 Section 34. Section 736.1506, Florida Statutes, is created
918 to read:
919 736.1506 Satisfaction of obligations.—Except as provided
920 in s. 4, Art. X of the State Constitution:
921 (1) An obligation incurred by only one spouse before or
922 during the marriage may be satisfied from that spouse's one-half
923 share of a community property trust.
924 (2) An obligation incurred by both spouses during the
925 marriage may be satisfied from a community property trust of the

Page 37 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

926 settlor spouses.
927 Section 35. Section 736.1507, Florida Statutes, is created
928 to read:
929 736.1507 Death of a spouse.—Upon the death of a spouse,
930 one-half of the aggregate value of the property held in a
931 community property trust established by the settlor spouses
932 reflects the share of the surviving spouse and is not subject to
933 testamentary disposition by the decedent spouse or distribution
934 under the laws of succession of the state. The other one-half of
935 the value of that property reflects the share of the decedent
936 spouse and is subject to testamentary disposition or
937 distribution under the laws of succession of the state. Unless
938 provided otherwise in the community property trust agreement,
939 the trustee has the power to distribute assets of the trust in
940 divided or undivided interests and to adjust resulting
941 differences in valuation. A distribution in kind may be made on
942 the basis of a non-pro rata division of the aggregate value of
943 the trust assets, on the basis of a pro rata division of each
944 individual asset, or by using both methods. The decedent's
945 spouse's one-half share shall not be included in the elective
946 estate.
947 Section 36. Section 736.1508, Florida Statutes, is created
948 to read:
949 736.1508 Dissolution of marriage.—Upon the dissolution of
950 the marriage of the settlor spouses, the community property

Page 38 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

951 trust shall terminate and the trustee shall distribute one-half
952 of the trust assets to each spouse, with each spouse receiving
953 one-half of each asset, unless otherwise agreed to in writing by
954 both spouses. For purposes of this act, s. 61.075 does not apply
955 to the disposition of the assets and liabilities held in a
956 community property trust.
957 Section 37. Section 736.1509, Florida Statutes, is created
958 to read:
959 736.1509 Right of child to support.—A community property
960 trust does not adversely affect the right of a child of the
961 settlor spouses to support that either spouse would be required
962 to give under the applicable laws of the settlor spouses' state
963 of domicile.
964 Section 38. Section 736.151, Florida Statutes, is created
965 to read:
966 736.151 Homestead property.—
967 (1) Property that is transferred to or acquired subject to
968 a community property trust may continue to qualify or may
969 initially qualify as the settlor spouses' homestead within the
970 meaning of s. 4(a)(1), Art. X of the State Constitution and for
971 all purposes of general law, provided that the property would
972 qualify as the settlor spouses' homestead if title was held in
973 one or both of the settlor spouses' individual names.
974 (2) The settlor spouses shall be deemed to have beneficial
975 title in equity to the homestead property held subject to a

Page 39 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

976 community property trust for all purposes, including for
977 purposes of s. 196.031.
978 Section 39. Section 736.1511, Florida Statutes, is created
979 to read:
980 736.1511 Application of Internal Revenue Code; community
981 property classified by another jurisdiction.—For purposes of the
982 application of s. 1014(b)(6) of the Internal Revenue Code of
983 1986, 26 U.S.C. s. 1014(b)(6), as of January 1, 2021, a
984 community property trust is considered a trust established under
985 the community property laws of the state. Community property as
986 classified by a jurisdiction other than the state which is
987 transferred to a community property trust retains its character
988 as community property while in the trust. If the trust is
989 revoked and property is transferred on revocation of the trust,
990 the community property as classified by a jurisdiction other
991 than the state retains its character as community property to
992 the extent otherwise provided by ss. 732.216-732.228.
993 Section 40. Section 736.1512, Florida Statutes, is created
994 to read:
995 736.1512 Unenforceable trusts.—
996 (1) A community property trust executed during marriage is
997 not enforceable if the spouse against whom enforcement is sought
998 proves that:
999 (a) The trust was unconscionable when made;
1000 (b) The spouse against whom enforcement is sought did not

Page 40 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

1001 execute the community property trust agreement voluntarily; or
1002 (c) Before execution of the community property trust
1003 agreement, the spouse against whom enforcement is sought:
1004 1. Was not given a fair and reasonable disclosure of the
1005 property and financial obligations of the other spouse.
1006 2. Did not voluntarily sign a written waiver expressly
1007 waiving right to disclosure of the property and financial
1008 obligations of the other spouse beyond the disclosure provided.
1009 3. Did not have notice of the property or financial
1010 obligations of the other spouse.
1011 (2) Whether a community property trust is unconscionable
1012 shall be determined by a court as a matter of law.
1013 (3) A community property trust may not be deemed
1014 unenforceable because the settlor spouses did not have separate
1015 legal representation when executing the trust.
1016 Section 41. Paragraph (f) of subsection (5) of section
1017 736.0802, Florida Statutes, is amended to read:
1018 736.0802 Duty of loyalty.—
1019 (5)
1020 (f)1. The trustee of a trust as defined in s. 731.201 may
1021 request authority to invest in investment instruments described
1022 in this subsection other than a qualified investment instrument,
1023 by providing to all qualified beneficiaries a written request
1024 containing the following:
1025 a. The name, telephone number, street address, and mailing

Page 41 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

1026 address of the trustee and of any individuals who may be
1027 contacted for further information.
1028 b. A statement that the investment or investments cannot
1029 be made without the consent of a majority of each class of the
1030 qualified beneficiaries.
1031 c. A statement that, if a majority of each class of
1032 qualified beneficiaries consent, the trustee will have the right
1033 to make investments in investment instruments, as defined in s.
1034 660.25(6), which are owned or controlled by the trustee or its
1035 affiliate, or from which the trustee or its affiliate receives
1036 compensation for providing services in a capacity other than as
1037 trustee, that such investment instruments may include investment
1038 instruments sold primarily to trust accounts, and that the
1039 trustee or its affiliate may receive fees in addition to the
1040 trustee's compensation for administering the trust.
1041 d. A statement that the consent may be withdrawn
1042 prospectively at any time by written notice given by a majority
1043 of any class of the qualified beneficiaries.
1044
1045 A statement by the trustee is not delivered if the statement is
1046 accompanied by another written communication other than a
1047 written communication by the trustee that refers only to the
1048 statement.
1049 2. For purposes of paragraph (e) and this paragraph:
1050 a. "Majority of the qualified beneficiaries" means:

Page 42 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

1051 (I) If at the time the determination is made there are one
1052 or more beneficiaries as described in s. 736.0103(19)(c) s.
1053 736.0103(16)(c), at least a majority in interest of the
1054 beneficiaries described in s. 736.0103(19)(a) s.
1055 736.0103(16)(a), at least a majority in interest of the
1056 beneficiaries described in s. 736.0103(19)(b) s.
1057 736.0103(16)(b), and at least a majority in interest of the
1058 beneficiaries described in s. 736.0103(19)(c) s.
1059 736.0103(16)(c), if the interests of the beneficiaries are
1060 reasonably ascertainable; otherwise, a majority in number of
1061 each such class; or
1062 (II) If there is no beneficiary as described in s.
1063 736.0103(19)(c) s. 736.0103(16)(c), at least a majority in
1064 interest of the beneficiaries described in s. 736.0103(19)(a) s.
1065 736.0103(16)(a) and at least a majority in interest of the
1066 beneficiaries described in s. 736.0103(19)(b) s.
1067 736.0103(16)(b), if the interests of the beneficiaries are
1068 reasonably ascertainable; otherwise, a majority in number of
1069 each such class.
1070 b. "Qualified investment instrument" means a mutual fund,
1071 common trust fund, or money market fund described in and
1072 governed by s. 736.0816(3).
1073 c. An irrevocable trust is created upon execution of the
1074 trust instrument. If a trust that was revocable when created
1075 thereafter becomes irrevocable, the irrevocable trust is created

Page 43 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

1076 when the right of revocation terminates.
1077 Section 42. Paragraph (a) of subsection (2) of section
1078 736.08125, Florida Statutes, is amended to read:
1079 736.08125 Protection of successor trustees.—
1080 (2) For the purposes of this section, the term:
1081 (a) "Eligible beneficiaries" means:
1082 1. At the time the determination is made, if there are one
1083 or more beneficiaries as described in s. 736.0103(19)(c) s.
1084 736.0103(16)(c), the beneficiaries described in s.
1085 736.0103(19)(a) and (c) s. 736.0103(16)(a) and (c); or
1086 2. If there is no beneficiary as described in s.
1087 736.0103(19)(c) s. 736.0103(16)(c), the beneficiaries described
1088 in s. 736.0103(19)(a) and (b) s. 736.0103(16)(a) and (b).
1089 Section 43. Paragraph (d) of subsection (9) of section
1090 738.104, Florida Statutes, is amended to read:
1091 738.104 Trustee's power to adjust.—
1092 (9)
1093 (d) For purposes of subsection (8) and this subsection,
1094 the term:
1095 1. "Eligible beneficiaries" means:
1096 a. If at the time the determination is made there are one
1097 or more beneficiaries described in s. 736.0103(19)(c) s.
1098 736.0103(16)(c), the beneficiaries described in s.
1099 736.0103(19)(a) and (c) s. 736.0103(16)(a) and (c); or
1100 b. If there is no beneficiary described in s.

Page 44 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

1101 736.0103(19)(c) s. 736.0103(16)(c), the beneficiaries described
1102 in s. 736.0103(19)(a) and (b) s. 736.0103(16)(a) and (b).
1103 2. "Super majority of the eligible beneficiaries" means:
1104 a. If at the time the determination is made there are one
1105 or more beneficiaries described in s. 736.0103(19)(c) s.
1106 736.0103(16)(c), at least two-thirds in interest of the
1107 beneficiaries described in s. 736.0103(19)(a) s. 736.0103(16)(a)
1108 or two-thirds in interest of the beneficiaries described in s.
1109 736.0103(19)(c) s. 736.0103(16)(c), if the interests of the
1110 beneficiaries are reasonably ascertainable; otherwise, it means
1111 two-thirds in number of either such class; or
1112 b. If there is no beneficiary described in s.
1113 736.0103(19)(c) s. 736.0103(16)(c), at least two-thirds in
1114 interest of the beneficiaries described in s. 736.0103(19)(a) s.
1115 736.0103(16)(a) or two-thirds in interest of the beneficiaries
1116 described in s. 736.0103(19)(b) s. 736.0103(16)(b), if the
1117 interests of the beneficiaries are reasonably ascertainable,
1118 otherwise, two-thirds in number of either such class.
1119 Section 44. Subsection (1) of section 744.3679, Florida
1120 Statutes, is amended to read:
1121 744.3679 Simplified accounting procedures in certain
1122 cases.—
1123 (1) In a guardianship of property, when all property
1124 assets of the estate is are in designated depositories under s.
1125 69.031 and the only transactions that occur in that account are

Page 45 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 609 2021

1126 interest accrual, deposits from a settlement, or financial
1127 institution service charges, the guardian may elect to file an
1128 accounting consisting of:
1129 (a) The original or a certified copy of the year-end
1130 statement of the ward's account from the financial institution;
1131 and
1132 (b) A statement by the guardian under penalty of perjury
1133 that the guardian has custody and control of the ward's property
1134 as shown in the year-end statement.
1135 Section 45. The Division of Law Revision is directed to
1136 replace the phrase "the effective date of this section" wherever
1137 it occurs in this act with the date those sections become law.
1138 Section 46. If any provision of this act or the
1139 application thereof to any person or circumstance is held
1140 invalid, the invalidity does not affect other provisions or
1141 applications of this act which can be given effect without the
1142 invalid provision or application, and to this end the provisions
1143 of this act are severable.
1144 Section 47. Except as otherwise expressly provided in this
1145 act and except for this section, which shall take effect upon
1146 becoming a law, this act shall take effect July 1, 2021.

Page 46 of 46

CODING: Words stricken are deletions; words underlined are additions.
hb0609-00
HB 7037
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: HB 7037 PCB GOS 21-05 OGSR/State-funded Infrastructure Bank
SPONSOR(S): Government Operations Subcommittee, McClure
TIED BILLS: IDEN./SIM. BILLS: SB 7004

REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF

Orig. Comm.: Government Operations 15 Y, 0 N Roth Smith
Subcommittee

1) Insurance & Banking Subcommittee Hinshelwood Luczynski

2) State Affairs Committee

SUMMARY ANALYSIS
The Open Government Sunset Review Act requires the Legislature to review each public record and each
public meeting exemption five years after enactment. If the Legislature does not reenact the exemption, it
automatically repeals on October 2nd of the fifth year after enactment.

The State-funded Infrastructure Bank (SIB) administered by the Department of Transportation is a revolving
loan and credit enhancement program to help fund transportation projects that otherwise might be delayed or
not built. Current law provides a public record exemption for financial information submitted by a private entity
as part of the SIB application process.

The bill reenacts and expands the public record exemption for financial information submitted by a private
entity as part of the SIB application process to include financial information of the private entity applicant’s
guarantor. As a result of the public record expansion, the bill extends the repeal date from October 2, 2021, to
October 2, 2026. It also provides a public necessity statement as required by the State Constitution.

The bill does not appear to have a fiscal impact on the state or local governments.

Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record or public meeting exemption.
The bill expands a public record exemption; thus, it requires a two-thirds vote for final passage.

This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
STORAGE NAME: h7037.IBS
DATE: 3/26/2021
FULL ANALYSIS

I. SUBSTANTIVE ANALYSIS

A. EFFECT OF PROPOSED CHANGES:
Background

Open Government Sunset Review Act
The Open Government Sunset Review Act1 sets forth a legislative review process for newly created or
substantially amended public record or public meeting exemptions. It requires an automatic repeal of
the exemption on October 2nd of the fifth year after creation or substantial amendment, unless the
Legislature reenacts the exemption.2

The Act provides that a public record or public meeting exemption may be created or maintained only if
it serves an identifiable public purpose. In addition, it may be no broader than is necessary to meet one
of the following purposes:
 Allow the state or its political subdivisions to effectively and efficiently administer a
governmental program, which administration would be significantly impaired without the
exemption.
 Protect sensitive personal information that, if released, would be defamatory or would
jeopardize an individual’s safety; however, only the identity of an individual may be exempted
under this provision.
 Protect trade or business secrets.3

If, and only if, in reenacting an exemption that will repeal, the exemption is expanded (essentially
creating a new exemption), then a public necessity statement and a two-thirds vote for passage are
required.4 If the exemption is reenacted with grammatical or stylistic changes that do not expand the
exemption, if the exemption is narrowed, or if an exception to the exemption is created then a public
necessity statement and a two-thirds vote for passage are not required.

State-funded Infrastructure Bank
The State-funded Infrastructure Bank (SIB)5 administered by the Department of Transportation (DOT)
is a revolving loan and credit enhancement program to help fund transportation projects that otherwise
might be delayed or not built. The SIB is composed of two separate accounts, a federally-funded
account that is capitalized by federal money and matching state money, and a state-funded account
that is capitalized by state money and bond proceeds. Projects eligible for assistance from the former
account include those which meet all federal requirements under the Transportation Equity Act for the
21st Century and are eligible for assistance under Title 23, U.S.C.,6 or capital projects as defined in s.
5302 of Title 49, U.S.C.7 and other applicable federal guidelines.8 Public and private entities that are
carrying out, or propose to carry out, eligible projects can apply to the SIB for a loan or other
assistance.

The federally-funded account is limited to projects which meet federal requirements. The state-funded
account is authorized to lend capital costs or provide credit enhancements for:
 A transportation facility project that is on the State Highway System;
 A project that provides for increased mobility on the state's transportation system;
 A project that provides for intermodal connectivity with airports, seaports, rail facilities, and other
transportation terminals for the movement of people, cargo and freight;

1 Section 119.15, F.S.
2 Section 119.15(3), F.S.
3 Section 119.15(6)(b), F.S.
4 Section 24(c), Art. I, FLA. CONST.
5 Section 339.55, F.S.
6 See 23 U.S.C. s. 119. Generally, projects on the National Highway System.
7 Generally, public transportation projects.
8 23 U.S.C. s. 610.
STORAGE NAME: h7037.IBS PAGE: 2
DATE: 3/26/2021
 Transportation Regional Incentive Program9 projects, provided the project receives at least a 25
percent match from non-SIB loan funds;10 and
 Emergency loans for damages incurred to public-use commercial deepwater seaports, public-
use airports, and other public-use transit and intermodal facilities that are within an area that is
part of an official state declaration of emergency.11

Additionally, projects identified under the Transportation Regional Incentive Program are eligible for
assistance from the state-funded account. DOT is authorized to match up to 50% of the cost for
projects that, at a minimum:
 Serve national, statewide, or regional functions and function as part of an integrated regional
transportation system;
 Are identified in the capital improvements element of a comprehensive plan and are in
compliance with local government plan policies relative to corridor management;
 Are consistent with the Strategic Intermodal System Plan developed under s. 339.64, F.S.; and
 Have a commitment for local, regional, or private financial matching funds as a percentage of
the overall project cost.12

A public or private entity seeking financial assistance from the SIB is required to submit an
application,13 based on published advertisement periods via DOT’s on-line advertised process, which
DOT reviews to ensure any potential project meets eligibility, financial, and production criteria.14 If the
criteria are met, DOT will determine an indicative interest rate for the application based on current
market conditions, financial strength of the borrower, term, and risk of loan.15

Examples of financial information items required in an SIB loan application include, but are not limited
to, providing details of the proposed finance plan, funding sources, information regarding any
anticipated bond issue or other debt instrument, loan term and amount, and primary and secondary
repayment sources.

Loans from the SIB may bear interest at or below market interest rates, as determined by DOT.
Repayment of any SIB loan must begin no later than five years after the project has been completed or,
in the case of a highway project, the facility has opened to traffic, whichever is later, and must be repaid
in 30 years.16

Public Record Exemption under Review
In 2016, the Legislature created a public record exemption for certain information submitted by a
private entity as part of the SIB application.17 Specifically, financial information of a private entity
applicant that DOT requires as part of the application process for loans or credit enhancements from
the SIB is exempt.18 However, the public record exemption does not apply to records of an applicant

9 See s. 339.2819, F.S.
10 See s. 339.55(6), F.S.
11 Section 339.55(2), F.S.
12 Section 339.55(2)(b) and see s. 339.2819, F.S.
13 To review an application form, see DOT, SIB Application and Awards, available at

https://www.fdot.gov/comptroller/pfo/sib-application-and-awards.shtm (last visited January 26, 2021).
14 See DOT’s SIB Guidelines for Federal/State, available at https://fdotwww.blob.core.windows.net/sitefinity/docs/default-

source/comptroller/pfo/sib/sib---guidelines-federal-state_07-12-18_final.pdf?sfvrsn=56f7082f_2 (last visited January 26,
2021).
15 DOT, State Infrastructure Bank, available at https://www.fdot.gov/comptroller/pfo/sib.shtm (last visited January 26,

2021).
16 Section 339.55(4), F.S.
17 Chapter 2016-38, L.O.F., codified as s. 339.55(10), F.S.
18 There is a difference between records the Legislature designates exempt from public record requirements and those

the Legislature deems confidential and exempt. A record classified as exempt from public disclosure may be disclosed
under certain circumstances. (See WFTV, Inc. v. The School Board of Seminole, 874 So.2d 48, 53 (Fla. 5th DCA 2004),
review denied 892 So.2d 1015 (Fla. 2004); City of Riviera Beach v. Barfield, 642 So.2d 1135 (Fla. 4th DCA 1994);
Williams v. City of Minneola, 575 So.2d 687 (Fla. 5th DCA 1991). If the Legislature designates a record as confidential
and exempt from public disclosure, such record may not be released, by the custodian of public records, to anyone other
than the persons or entities specifically designated in statute. (See Attorney General Opinion 85-62, Aug. 1, 1985).
STORAGE NAME: h7037.IBS PAGE: 3
DATE: 3/26/2021
who is in default of a loan issued by the SIB. The 2016 public necessity statement19 for the exemption
provides that the Legislature finds that:

The disclosure of such information could harm a private entity in the marketplace
by giving the private entity's competitors insights into its financial status and
business plan, thereby putting the private entity at a competitive disadvantage.
Additionally, the disclosure of sensitive financial information regarding a private
entity could create the opportunity for theft, fraud, and other illegal activity,
thereby jeopardizing the financial security of the private entity and placing it at
risk for substantial financial harm. If an individual is required to provide his or her
personal financial information to the department as part of the application
process for his or her business, the individual could be subject to identity theft
and other criminal activity. Without an exemption from public records
requirements under s. 119.07(1), Florida Statutes, and s. 24(a), Article I of the
State Constitution, some private entities might be unwilling to submit an
application to the state-funded infrastructure bank. This unwillingness to submit
applications could, in turn, limit opportunities the department might otherwise
have for providing loans or credit enhancements to private entities who could
propose cost-effective or strategic solutions for constructing and improving
transportation facilities. The Legislature finds that the benefit to the public of
more private entities applying for loans or credit enhancements outweighs any
public benefit that may be derived from the disclosure of the financial information
of a private entity.20

Pursuant to the Open Government Sunset Review Act, the exemption will repeal on October 2, 2021,
unless reenacted by the Legislature.21

During the 2020 interim, subcommittee staff sent a questionnaire to DOT regarding the public records
exemption.22 As of the date of the questionnaire, the number of projects approved by SIB were 107
transportation facility projects, 36 regional incentive program projects, and seven emergency loan
projects.23 DOT recommends that the public record exemption be expanded to include the financial
information of the applicant’s guarantor.24

Effect of the Bill

The bill reenacts and expands the public record exemption for financial information submitted by a
private entity as part of the SIB application process required by DOT to include financial information of
the private entity applicant’s guarantor. However, the public record exemption does not apply to records
of an applicant or an applicant’s guarantor who is in default of a loan issued by the SIB.

The bill expands the current public record exemption; therefore, the repeal date is extended. The
expanded exemption is subject to the Open Government Sunset Review Act and will repeal on October
2, 2026, unless the Legislature reviews and reenacts the exemption by that date.

The bill provides a public necessity statement as required by the State Constitution.

B. SECTION DIRECTORY:

19 Article I, s. 24(c), FLA. CONST., requires each public record exemption to “state with specificity the public necessity

justifying the exemption.”
20 Section 2, ch. 2016-38, L.O.F.
21 Section 119.071(5)(k)4., F.S.
22 Open Government Sunset Review Questionnaire, DOT Response, September 10, 2020, on file with the House

Government Operations Subcommittee.
23 Id. at p. 2.
24 Id. at p. 5-6.
STORAGE NAME: h7037.IBS PAGE: 4
DATE: 3/26/2021
Section 1: Amends s. 339.55, F.S., relating to the public records exemption for applicants of the State-
funded Infrastructure Bank.

Section 2: Provides a public necessity statement.

Section 3: Provides an effective date of July 1, 2021.

II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT

A. FISCAL IMPACT ON STATE GOVERNMENT:

1. Revenues:
None.

2. Expenditures:
None.

B. FISCAL IMPACT ON LOCAL GOVERNMENTS:

1. Revenues:
None.

2. Expenditures:
None.

C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
None.

D. FISCAL COMMENTS:
None.

III. COMMENTS

A. CONSTITUTIONAL ISSUES:

1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.

2. Other:
Vote Requirement
Article I, s. 24(c) of the Florida Constitution requires a two-thirds vote of the members present and
voting for final passage of a newly created or expanded public record exemption. The bill expands a
public record exemption; thus, it requires a two-thirds vote for final passage.

Public Necessity Statement
Article I, s. 24(c) of the Florida Constitution requires a public necessity statement for a newly created
or expanded public record exemption. The bill expands a public record exemption; therefore, it
includes a public necessity statement.

Breadth of Exemption
Article I, s. 24(c) of the Florida Constitution requires a newly created or expanded public record or
public meeting exemption to be no broader than necessary to accomplish the stated purpose of the
law. The bill expands a public record exemption for financial information of a private entity applicant

STORAGE NAME: h7037.IBS PAGE: 5
DATE: 3/26/2021
for loans and credit enhancements from the SIB to include the financial information of the applicant’s
guarantor. As such, the bill appears to be no broader than necessary to accomplish its purpose.

B. RULE-MAKING AUTHORITY:
The bill does not provide a grant of rulemaking authority, nor does it require rulemaking.

C. DRAFTING ISSUES OR OTHER COMMENTS:
None.

IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
None.

STORAGE NAME: h7037.IBS PAGE: 6
DATE: 3/26/2021
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 7037 2021

1 A bill to be entitled
2 An act relating to a review under the Open Government
3 Sunset Review Act; amending s. 339.55, F.S.; expanding
4 the exemption from public records requirements for
5 financial information of a private entity applicant
6 for loans or credit enhancements from the state-funded
7 infrastructure bank to include the financial
8 information of the private entity applicant's
9 guarantor; providing for application of the exemption;
10 revising the definition of the term "financial
11 information" to include the financial information of
12 the private entity applicant's guarantor; providing
13 for future legislative review and repeal of the
14 exemption; providing a statement of public necessity;
15 providing an effective date.
16
17 Be It Enacted by the Legislature of the State of Florida:
18
19 Section 1. Subsection (10) of section 339.55, Florida
20 Statutes, is amended to read:
21 339.55 State-funded infrastructure bank.—
22 (10)(a) Financial information of a private entity
23 applicant or an applicant's guarantor which the department
24 requires as part of the application process for loans or credit
25 enhancements from the state-funded infrastructure bank is exempt

Page 1 of 3

CODING: Words stricken are deletions; words underlined are additions.
hb7037-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 7037 2021

26 from s. 119.07(1) and s. 24(a), Art. I of the State
27 Constitution. This exemption does not apply to records of an
28 applicant or an applicant's guarantor who is in default of a
29 loan issued under this section. As used in this subsection, the
30 term "financial information" means any business plan, pro forma
31 statement, account balance, operating income or revenue, asset
32 value, or debt of the applicant or the applicant's guarantor.
33 (b) This subsection is subject to the Open Government
34 Sunset Review Act in accordance with s. 119.15 and shall stand
35 repealed on October 2, 2026 2021, unless reviewed and saved from
36 repeal through reenactment by the Legislature.
37 Section 2. The Legislature finds that it is a public
38 necessity that financial information of the guarantor of a
39 private entity applicant which the Department of Transportation
40 requires as part of the application process for a loan or credit
41 enhancement from the state-funded infrastructure bank be made
42 exempt from s. 119.07(1), Florida Statutes, and s. 24(a),
43 Article I of the State Constitution. The disclosure of such
44 information could harm a guarantor in the marketplace by giving
45 the guarantor's competitors insights into its financial status
46 and business plan, thereby putting the guarantor at a
47 competitive disadvantage. Additionally, the disclosure of the
48 guarantor's financial information could create the opportunity
49 for theft, fraud, and other illegal activity, thereby
50 jeopardizing the financial security of the guarantor and placing

Page 2 of 3

CODING: Words stricken are deletions; words underlined are additions.
hb7037-00
F L O R I D A H O U S E O F R E P R E S E N T A T I V E S

HB 7037 2021

51 it at risk for substantial financial harm. Without an exemption
52 from public records requirements, some guarantors might be
53 unwilling to provide guarantees for private entity applicants
54 who submit an application to the state-funded infrastructure
55 bank. This unwillingness to provide guarantees for private
56 entity applicants could limit the ability of private entity
57 applicants to submit applications for assistance from the state-
58 funded infrastructure bank, which could limit opportunities the
59 department might otherwise have for providing loans or credit
60 enhancements to private entities who could propose cost-
61 effective or strategic solutions for constructing and improving
62 transportation facilities. The Legislature finds that the
63 benefit to the public of increased opportunities for the
64 provision of such facilities facilitated by private entity
65 applicants' guarantors outweighs any public benefit that may be
66 derived from the disclosure of the financial information of a
67 private entity applicant's guarantor. For this reason, the
68 Legislature declares that financial information that the
69 department requires of a guarantor as part of a private entity's
70 application process for a loan or credit enhancement from the
71 state-funded infrastructure bank is exempt from s. 119.07(1),
72 Florida Statutes, and s. 24(a), Article I of the State
73 Constitution.
74 Section 3. This act shall take effect July 1, 2021.

Page 3 of 3

CODING: Words stricken are deletions; words underlined are additions.
hb7037-00

File and source

File: 2021-03-30_3100_insurance-banking-subcommittee_meeting-packets_fn-ibs-3-30-21.pdf
Size: 1,035,789 bytes
SHA-256: 523b5d0732491c3f0944a60b2ce976ffb78719193bce6e2375dcc240089ac092
Our copy: 2021-03-30_3100_insurance-banking-subcommittee_meeting-packets_fn-ibs-3-30-21.pdf
Original: No public link identified.