Fla. Stat. § 736.0304 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.0304

Fla. Stat. § 736.0304 provides that a person with a “substantially identical interest” may represent certain individuals, unless that individual is already represented. This is an extension of virtual representation, a res judicata doctrine which applies “only when the respective interests are closely aligned and the party . . . adequately represented those interests." Delta Air Lines, Inc. v. McCoy Restaurants, Inc., 708 F.2d 582, 587 (11th Cir. 1983). In a trust matter, virtual representation may used for minors, incapacitated persons, unborn persons, unidentifiable persons, and unlocatable persons. However, no such representation may occur if a conflict of interests exists.

The statute section does not define what a “substantially identical interest” includes. However, the commentary to the Uniform Trust Code provides the following guidance:

A common example would be a trust providing for distribution to the settlor’s children as a class, with an adult child being able to represent the interests of children who are either minors or unborn. Exact identity of interests is not required, only substantial identity with respect to the particular question or dispute. Whether such identity is present may depend on the nature of the interest. For example, a presumptive remaindermen [sic] may be able to represent alternative remaindermen with respect to approval of a trustee’s report but not with respect to interpretation of the remainder provision or termination of the trust.

Text of Fla. Stat. § 736.0304

Representation by person having substantially identical interest.—Unless otherwise represented, a minor, incapacitated, or unborn individual, or a person whose identity or location is unknown and not reasonably ascertainable, may be represented by and bound by another person having a substantially identical interest with respect to the particular question or dispute, but only to the extent there is no conflict of interest between the representative and the person represented.

History of Fla. Stat. § 736.0304

Fla. Stat. § 736.0304 became law in 2007 as part of the broader Florida Trust Code. It has not been updated since.

Fla. Stat. § 736.0304 was taken verbatim from § 304 of the Uniform Trust Code, which in turn was derived from § 1-403(2)(iii) of the Uniform Probate Code.

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