How “Revocable” is Defined - Commentary to Florida Trust Code

Legal Commentary on the Definition of “Revocable”

Fla. Stat. § 736.0103(20) defines the term “revocable.” The text of the subsection reads:

“Revocable,” as applied to a trust, means revocable by the settlor without the consent of the trustee or a person holding an adverse interest.

A revocable trust is one that may be revoked by the settlor. If the terms of the the trust take away a settlor’s ability to revoke the trust, then the trust is irrevocable. This remains true even if the terms of the trust give a different party the ability to revoke or modify the trust.

The commentary to the Uniform Trust Code makes clear that the settlor’s authority under the trust to revoke that trust is what makes the trust revocable, not the settlor’s physical or mental capacity to revoke the trust. The relevant portion of that commentary states:

The definition of “revocable” . . . clarifies that revocable trusts include only trusts whose revocation is substantially within the settlor’s control. The fact that the settlor becomes incapacitated does not convert a revocable trust into an irrevocable trust. The trust remains revocable until the settlor’s death or the power of revocation is released.

History of the Definition of “Revocable”

The term “revocable” has been consistently defined since the Florida Trust Code took effect in 2007. The definition was taken word-for-word from paragraph 14 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.