In short: In Florida, you can’t contest a revocable trust until the settlor dies (§ 736.0207). After that, the contest can be cut off just 6 months after the trustee sends you a copy of the trust and the statutory notice (§ 736.0604). A trust or amendment procured by undue influence, fraud, duress, or mistake is void (§ 736.0406).
The pattern is familiar. Dad’s trust divided everything equally for twenty years. Then, weeks before he died, an amendment cut one child out, or moved the house to the caregiver, or named the person who drove him to the lawyer’s office as trustee.
You Usually Can’t Sue Until the Settlor Dies
"An action to contest the validity of all or part of a revocable trust, or the revocation of part of a revocable trust, may not be commenced until the trust becomes irrevocable by its terms or by the settlor’s death." (§ 736.0207(2))
The exception: a guardian of the property of an incapacitated settlor may bring the action.
The Deadline Can Be Six Months
"An action to contest the validity of a trust that was revocable at the settlor’s death is barred, if not commenced within the earlier of: (1) The time as provided in chapter 95; or (2) Six months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding." (§ 736.0604)
If you received that package from the trustee, the clock is running. Don’t sit on it.
The Grounds
- Undue influence, fraud, duress, mistake. "If the creation, amendment, or restatement of a trust is procured by fraud, duress, mistake, or undue influence, the trust or any part so procured is void" (§ 736.0406). Only the tainted part falls; the rest of the trust can stand.
- Lack of capacity. The capacity to create or amend a revocable trust "is the same as that required to make a will" (§ 736.0601).
- Improper execution. The parts of a revocable trust that dispose of property at death are invalid unless the trust was signed with the formalities required for a will (§ 736.0403(2)(b)).
- Gifts to the drafting lawyer. A gift in a written instrument to the lawyer who prepared it, or to the lawyer’s relatives, is void unless the recipient is related to the person making the gift (§ 732.806). That rule doesn’t bar naming the lawyer as a fiduciary.
Who Has the Burden
The contestant has the burden of proving the grounds (§ 736.0207(1)). But if you show that a beneficiary had a confidential relationship with the settlor and was active in procuring the trust, the Carpenter presumption of undue influence arises and shifts the burden of proof (§ 733.107(2); In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971)).
The No-Contest Clause Doesn’t Stop You
A trust provision that penalizes a beneficiary for contesting the trust or bringing other proceedings is unenforceable in Florida (§ 736.1108).
What to Gather
Medical records near the signing date. The drafting lawyer’s file and notes. Who arranged the appointment, who was in the room, who paid. Bank records showing money moving at the same time. Late-life changes rarely happen in a vacuum.
Watch: the videos behind this article
Written Out of Dad’s Trust Weeks Before He Died — Is Dismissal With Prejudice an Abuse?
Don’t Sign a Florida Living Trust Until You Know This
More Short Videos on This Issue
Watch the Real Appellate Arguments
These are recordings of actual Florida appellate oral arguments in trust contests, posted on the channel: deathbed amendments, a drafting lawyer named as trustee, and summary judgment before review of the lawyer’s file. An argument is not a ruling: read the written opinion before relying on any outcome.
Deathbed Trust Amendments and $7 Million Moved Days Before He Died
Drafting Lawyer Became Trustee and Beneficiary — Is That Active Procurement Under Carpenter?
Will & Trust Contest: Summary Judgment Before In-Camera Review of the Drafting Lawyer’s File
Go Deeper
- Undue Influence in Florida: How Courts Decide When a Will Was Procured by Someone Else
- How to Contest a Will in Florida: Who Can Sue, What You Must Prove, and the 3-Month Deadline
- When a Revocable Trust Doesn’t Work: Unfunded Trusts and Trust Litigation
Frequently Asked Questions
Can you contest a trust before the settlor dies in Florida?
Generally no. Under § 736.0207(2), an action contesting a revocable trust can’t begin until the trust becomes irrevocable or the settlor dies. A guardian of the property of an incapacitated settlor is the exception.
How long do you have to contest a trust in Florida?
The earlier of the Chapter 95 limitations period or 6 months after the trustee sent you a copy of the trust and a notice of its existence, the trustee’s name and address, and the time to sue (§ 736.0604).
What are the grounds to contest a trust in Florida?
Undue influence, fraud, duress, or mistake (§ 736.0406); lack of capacity, which is the same as for a will (§ 736.0601); and failure to sign with will formalities (§ 736.0403(2)(b)).
Will a no-contest clause stop me from challenging a Florida trust?
No. Section 736.1108 makes a trust provision that penalizes a beneficiary for contesting the trust or bringing proceedings unenforceable.
Talk to a Florida probate litigator
Weidner Law, P.A. handles Florida probate, trust, and will disputes from St. Petersburg. If you need a trust litigation lawyer for a trust contest, call (727) 954-8752 or email weidner@mattweidnerlaw.com.
Read the law yourself, free: the Florida Trust Code (Chapter 736) and the full Florida Probate Code and Probate Rules are on floridarules.net.
This article is general information about Florida law, not legal advice about your situation. Reading it, watching the videos, or contacting the firm does not create an attorney-client relationship. Every case turns on its own facts, and past results do not guarantee a similar outcome. The hiring of a lawyer is an important decision that should not be based solely upon advertisements.
