736.04113
Judicial modification of irrevocable trust when modification is not inconsistent with settlor’s purpose.
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736.04113 Judicial modification of irrevocable trust when modification is not inconsistent with settlor’s purpose.—
(1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2), if:
(a) The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill;
(b) Because of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust; or
(c) A material purpose of the trust no longer exists.
(2) In modifying a trust under this section, a court may:
(a) Amend or change the terms of the trust, including terms governing distribution of the trust income or principal or terms governing administration of the trust;
(b) Terminate the trust in whole or in part;
(c) Direct or permit the trustee to do acts that are not authorized or that are prohibited by the terms of the trust; or
(d) Prohibit the trustee from performing acts that are permitted or required by the terms of the trust.
(3) In exercising discretion to modify a trust under this section:
(a) The court shall consider the terms and purposes of the trust, the facts and circumstances surrounding the creation of the trust, and extrinsic evidence relevant to the proposed modification.
(b) The court shall consider spendthrift provisions as a factor in making a decision, but the court is not precluded from modifying a trust because the trust contains spendthrift provisions.
(4) The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, terminate, or revoke trusts.
History.—s. 4, ch. 2006-217.
Notes of Decisions
Cited in 9
cases, 2008–2020 · leading case: Nelson v. Nelson
Nelson v. Nelson (2016)
“Absent an application made by a trustee or beneficiary of the Trust requesting modification or termination, the text of section 736.04113 yields but one conclusion—the trial court had no authority to modify the Trust and reach the California home, an asset of the irrevocable…”
Dennis v. Kline (2013)
“04113(1)(b) authorizes a court to modify the terms of an irrevocable trust where “[b]ecause of circumstances not anticipated by the set-tlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust.”
Reid v. TEMPLE JUDEA (2008)
“) (emphasis added); [4] see § 736.04113, Fla. Stat. (2007) (replacing former section 737.”
Horgan v. Cosden (2018)
“Section 736.04113 entitled "Judicial modification of irrevocable trust when modification is not inconsistent with settlor's purpose," provides in pertinent part as follows: (1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may…”
Peck v. Peck (2014)
“The trial court observed that section 736.04113 does not limit the trial court’s common-law authority to terminate a trust.”
Bellamy v. Langfitt (2012)
“4031, Florida Statutes (2002), 4 which is currently *1174 found in section 736.04113 of the Florida Statutes, 5 allowed for the judicial modification of a trust under certain circumstances, including “if compliance with the terms of the trust is not in the best interest of the…”
Securities Exchange v. Mutual Benefits Corp (2020)
“Fla. Stat. § 736.04113 . In addition, upon the application of a trustee or any qualified beneficiary, Fla.”
JOSEPH J. HORGAN v. CHRISTOPHER E. COSDEN (2018)
“Section 736.04113 entitled "Judicial modification of irrevocable trust when modification is not inconsistent with settlor's purpose," provides in pertinent part as follows: (1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may…”
Securities Exchange v. Mutual Benefits Corp (2020)
“The Florida Trust Code, § 736.04113, provides that a trustee or a qualified beneficiary may apply to a court to modify an irrevocable trust.”
— 736.04113(1) — 3 cases
Nelson v. Nelson (2016)
“Absent an application made by a trustee or beneficiary of the Trust requesting modification or termination, the text of section 736.04113 yields but one conclusion—the trial court had no authority to modify the Trust and reach the California home, an asset of the irrevocable…”
Reid v. TEMPLE JUDEA (2008)
“) (emphasis added); [4] see § 736.04113, Fla. Stat. (2007) (replacing former section 737.”
Peck v. Peck (2014)
“The trial court observed that section 736.04113 does not limit the trial court’s common-law authority to terminate a trust.”
— 736.04113(1)(b) — 1 case
Dennis v. Kline (2013)
“04113(1)(b) authorizes a court to modify the terms of an irrevocable trust where “[b]ecause of circumstances not anticipated by the set-tlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust.”
— 736.04113(2) — 1 case
Securities Exchange v. Mutual Benefits Corp (2020)
“Fla. Stat. § 736.04113 . In addition, upon the application of a trustee or any qualified beneficiary, Fla.”
— 736.04113(2)(a) — 1 case
Dennis v. Kline (2013)
“04113(1)(b) authorizes a court to modify the terms of an irrevocable trust where “[b]ecause of circumstances not anticipated by the set-tlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust.”
— 736.04113(3)(a) — 1 case
Nelson v. Nelson (2016)
“Absent an application made by a trustee or beneficiary of the Trust requesting modification or termination, the text of section 736.04113 yields but one conclusion—the trial court had no authority to modify the Trust and reach the California home, an asset of the irrevocable…”
— 736.04113(4) — 2 cases
Nelson v. Nelson (2016)
“Absent an application made by a trustee or beneficiary of the Trust requesting modification or termination, the text of section 736.04113 yields but one conclusion—the trial court had no authority to modify the Trust and reach the California home, an asset of the irrevocable…”
Peck v. Peck (2014)
“The trial court observed that section 736.04113 does not limit the trial court’s common-law authority to terminate a trust.”
— 736.04113(l)(b) — 1 case
Dennis v. Kline (2013)
“04113(1)(b) authorizes a court to modify the terms of an irrevocable trust where “[b]ecause of circumstances not anticipated by the set-tlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust.”
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