Florida Statute 736.0412
“Nonjudicial modification of irrevocable trust”
What it means
This is modification without a judge. After the settlor's death, a trust may be modified at any time on the unanimous agreement of the trustee and all qualified beneficiaries, as long as the change is one a court could order under §736.04113(2). A spendthrift clause, or a clause forbidding amendment, does not stand in the way.
Absent beneficiaries can be bound through Florida's representation rules, so a minor's or an unborn beneficiary's interest may be represented by someone else. Three categories are carved out: trusts created before January 1, 2001, certain trusts that must vest within the perpetuities period, and charitable trusts while any charitable interest remains.
- Available only after the settlor's death — a living settlor uses revocation or amendment instead.
- Requires the unanimous agreement of the trustee and all qualified beneficiaries.
- The modification must be one a court could order under §736.04113(2).
- A spendthrift clause or a no-amendment clause does not prevent it.
- Absent beneficiaries may be bound through Florida's representation rules (part III of the code).
- Does not apply to pre-2001 trusts, certain perpetuities-limited trusts, or charitable trusts while charitable interests remain — subsection (4)(c).
How it plays out
This is the quiet workhorse of post-death trust cleanup — correcting a scrivener's error, updating an administrative term, resolving an ambiguity — all by agreement, on paper, without filing anything. The catch is the word unanimous. One qualified beneficiary who will not sign, or whose interest nobody can represent, and the family is back to §736.04113 and a judge. And it is a private-family tool only: §736.0412(4)(c) keeps charitable trusts out, so a trust with a charitable share cannot be rewritten this way while that share exists — the Attorney General's interest is not something the family can sign away.
Where this shows up
Pages on this site where § 736.0412 does real work:
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