Fla. Stat. § 736.1303 - Commentary to Florida Trust Code

Legal Commentary on Fla. Stat. § 736.1303

Fla. Stat. § 736.1303 establishes that trusts are included under the Florida Trust Code even when those trusts were executed prior to the effective date of the Code of July 1, 2007. Thus, there is a retroactive application of the Florida Trust Code. The same is true of judicial proceedings concerning trusts commenced on or after July 1, 2007; the Florida Trust Code applies whenever the law is relevant.

However, courts are given dome discretion whenever the judicial proceeding was initiated prior to July 1, 2007. For those proceedings, the court may decide that retroactively applying the Florida Trust Code would prejudice the parties or effectively interfere with the proceeding. This is why judicial opinions exist in the few years after the enactment of the Florida Trust Code in which former chapter 737 of the Florida Statutes is cited as current law. This was an option to the courts at that time, but in any case filed today, the proceeding would be bound to apply the Florida Trust Code when relevant.

Similarly, an act committed prior to July 1, 2007 would not be effected by the Florida Trust Code. Thus, if a trustee committed a potentially tortious act prior to July 1, 2007, it would be inappropriate to sue that trustee under the Florida Trust Code. Instead, former chapter 737 and the common law would govern whether the trustee is liable for the action.

Text of Fla. Stat. § 736.1303

Application to existing relationships.—

(1) Except as otherwise provided in this code, on July 1, 2007:

(a) This code applies to all trusts created before, on, or after such date.

(b) This code applies to all judicial proceedings concerning trusts commenced on or after such date.

(c) This code applies to judicial proceedings concerning trusts commenced before such date, unless the court finds that application of a particular provision of this code would substantially interfere with the effective conduct of the judicial proceedings or prejudice the rights of the parties, in which case the particular provision of this code does not apply and the superseded law applies.

(d) Any rule of construction or presumption provided in this code applies to trust instruments executed before the effective date of this code unless there is a clear indication of a contrary intent in the terms of the trust.

(e) An act done before such date is not affected by this code.

(2) If a right is acquired, extinguished, or barred on the expiration of a prescribed period that has commenced to run under any other law before July 1, 2007, that law continues to apply to the right even if it has been repealed or superseded.

History of Fla. Stat. § 736.1303

Fla. Stat. § 736.1303 became law on July 1, 2007 as part of the Florida Trust Code. It has not been amended or revised since that date.

The text of Fla. Stat. § 736.1303 is taken nearly word for word from § 1106 of the Uniform Trust Code.

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