Does a Revocable Trust’s Trustee Owe Anything to Contingent Heirs? (Capo v. Capo)

The Facts

Manuel and Aida Capo came to the United States from Cuba in 1967 and, with their six children, built El Dorado Furniture. Manuel also had a son from an earlier relationship, Dagoberto, who came later and worked in the business only briefly. According to the opinion, the family paid Dagoberto more than $2.5 million over about 35 years at Manuel’s request.

The couple signed wills and reciprocal revocable trusts. At the surviving spouse’s death, the trust estate would be split equally among the living children, with Dagoberto’s share passing to his children, and each spouse held a power of appointment. During their lives the parents moved their Miami Beach home into an LLC through an estate freeze, with six grantor trusts allowing the six sons to buy interests, and transferred all shares of the business to the six sons. Manuel died in 2009. Aida later created irrevocable gift trusts for Dagoberto’s two children, and she died in 2018.

Dagoberto and his children sued. After losing on their claim to the business on summary judgment, they tried claims for failure to provide trust accountings, breach of fiduciary duty, fraudulent transfer of the home, and tortious interference with an expected inheritance. After a six-day bench trial, the court entered a 45-page judgment rejecting every claim.

The Decision

The Third District affirmed in all respects in a short per curiam opinion. It cited section 736.0603 and section 736.0813(4), along with case law holding that while a trust is revocable, the trustee’s duties run to the settlor, not to contingent beneficiaries. The court noted that the claimants’ remainder interests were contingent, not vested.

The court also held that competent, substantial evidence supported the trial court’s factual findings. That standard is very hard to overcome on appeal after a full trial.

The Law

Under section 736.0603(1), while a trust is revocable, the trustee’s duties are owed exclusively to the settlor. Section 736.0813(4) applies that rule to the duty to inform and account: during the revocable period, accountings and information are owed only to the settlor. Once the trust becomes irrevocable, usually at the settlor’s death, the trustee must notify qualified beneficiaries and account to them going forward under section 736.0813(1).

With joint or reciprocal trusts, the surviving spouse’s power to revoke or appoint can keep the survivor’s share revocable until the survivor dies. A beneficiary who is only a contingent remainder holder during that period generally cannot demand accountings for it or sue for breach of duties that ran to the settlor.

Current law (2026): Section 736.0603(1) is current (amended 2021, ch. 2021-183, subsection (1) unchanged in substance); section 736.0813(4) current per 2026 text.

Lessons

• While a parent is alive and can revoke the trust, the trustee answers to the parent, not to the children who expect to inherit.
• Lifetime gifts and estate-freeze transfers the parents approved are hard to undo after death.
• Accounting rights start when the trust becomes irrevocable. Focus demands on that period.
• After a full trial, appellate courts defer heavily to the judge’s factual findings.

Source: Capo v. Capo, No. 3D24-0409 — Fla. 3d DCA (October 15, 2025).

Watch the Oral Argument

This is the recording of the actual oral argument, posted on the channel. What lawyers and judges say at argument is not the ruling; the decision is summarized above.

Trust Accounting — Do Remainder Beneficiaries Get Accountings During the Spouse's Life? | Capo v. Capo

Go Deeper

• Florida Trustee Duties and Beneficiary Rights: Accountings, Self-Dealing, and the 6-Month Deadline
• How to Contest a Trust in Florida: Deathbed Amendments, Undue Influence, and the 6-Month Clock
• Successor Trustee in Florida: What to Do When You Take Over a Trust

Frequently Asked Questions

Does a trustee of a revocable trust owe duties to the beneficiaries in Florida?

Not while the trust is revocable. Section 736.0603(1) says the trustee’s duties are owed exclusively to the settlor during that time. In Capo v. Capo, the Third DCA applied that rule to reject claims by contingent beneficiaries. The trial court’s judgment for the trustees stood.

Can I get a trust accounting for the years before my parent died?

Usually not for any period when the trust was revocable. Section 736.0813(4) limits the duty to inform and account to the settlor while the trust is revocable. After it becomes irrevocable, qualified beneficiaries are entitled to notice and annual accountings.

What is a contingent beneficiary of a trust?

Someone whose interest depends on a future event, such as surviving a parent or the settlor not changing the trust. In Capo, the grandchildren’s interests depended on the surviving spouse’s death and on her not exercising her power of appointment, so the court treated them as contingent.

Can children challenge transfers parents made to siblings before death?

They can try, through claims like undue influence or tortious interference with an expected inheritance, but they must prove them. In Capo, after a six-day trial, the court found the parents made the transfers and rejected every claim, and the appeal was affirmed.

Talk to a Florida probate litigation lawyer

Weidner Law, P.A. handles Florida probate litigation and appeals from St. Petersburg. If you need a probate litigation lawyer, call (727) 954-8752 or email weidner@mattweidnerlaw.com.

Read the law yourself, free: the full Florida Probate Code and Probate Rules and the Florida Trust Code are on floridarules.net.

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