Fla. Stat. § 736.0106 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.0106

Fla. Stat. § 736.0106 makes clear that the common law regarding trusts has not been overruled by the Florida Trust Code, unless the common law is explicitly modified or contradicted by the code. For example, in the common law of Florida we find the principle:

“If the trustee fails to keep clear, distinct, and accurate accounts, all presumptions are against him and all obscurities and doubts are to be taken adversely to him. If he loses his accounts, he must bear any resulting damage.” Benbow v. Benbow, 157 So. 512, 519 (Fla. 1934).

This principle from Benbow is never explicitly mentioned or referenced in the Florida Trust Code. However, it is also never contradicted by the code. Thus, the principle remains good law and it continues to apply to Florida trustees.

The commentary to the Uniform Trust Code, the text which heavily inspired Fla. Stat. § 736.0106, defines the term “common law” as being first the case law of the state and second the relevant restatements (such as the Restatement of Trusts). The commentary also makes clear that the common law is not static; rather it changes and evolves with time.

Text of Fla. Stat. § 736.0106

Common law of trusts; principles of equity.—The common law of trusts and principles of equity supplement this code, except to the extent modified by this code or another law of this state.

History of Fla. Stat. § 736.0106

Fla. Stat. § 736.0106 became law on July 1, 2007, as part of the Florida Trust Code. It has not been amended or revised since that date. However, a prior version appeared in Fla. Stat. 737.4031(7) as part of the former chapter 737 of the Florida Statutes:

The provisions of this section are in addition to, and not in derogation of, rights under the common law to modify, amend, or revoke trusts.

The current reading of Fla. Stat. § 736.0106 appears to be heavily based on Section 106 of the Uniform Trust Code, which reads:

The common law of trusts and principles of equity supplement this [Code], except to the extent modified by this [Code] or another statute of this State.

This article is part of the PTM Legal Commentary to the Florida Trust Code. Click here to navigate through the entire commentary.