In short: Yes, in the right setting. In Peck v. Peck, the Second DCA affirmed an order terminating an irrevocable spendthrift trust because the settlor and all beneficiaries consented. The court held Florida’s trust modification statute did not displace the common-law rule allowing termination by consent, even when the trust’s purposes are unfulfilled.
The Facts
A father who was a lawyer prepared an irrevocable trust in 1992 for his daughter, funded with gifts he had made to her under the Uniform Transfers to Minors Act. The daughter signed as the settlor and served as co-trustee with her father; her brother was named successor trustee. The trust paid her income for life, allowed fixed annual principal withdrawals that rose at ages 50 and 55, gave her a testamentary power of appointment over the remainder, contained a spendthrift clause, and said it could not be amended.
When the father died in 2009, assets from his own estate plan poured into the daughter’s trust, and her brother became co-trustee. She later exercised her power of appointment by will in favor of her three children. In 2012 she petitioned to terminate the trust, and her children agreed. Her brother objected, arguing she might dissipate the money and that their father had shared that worry.
The Decision
The trial court terminated the trust, and the Second District affirmed on February 26, 2014. The brother argued that under section 736.04113 a court cannot end a trust whose purposes are unfulfilled. The court disagreed: that statute says expressly that it is in addition to common-law rights to modify or terminate trusts. Under the common law recognized in Preston v. City National Bank of Miami, a trust may be terminated when the settlor and all beneficiaries consent, even if it is irrevocable and its purposes are not yet met.
The court distinguished Bellamy v. Langfitt (Fla. 3d DCA 2012), which involved court-ordered modification under the statute, not termination by agreement. It also observed that because the daughter, not her father, was the settlor, her consent with her children’s was enough, even though the result defeated the father’s plan for how she would receive his assets. Had the father been the settlor, he likely could have drafted the trust to block common-law termination.
The Law
Florida offers several routes to change an irrevocable trust. section 736.04113 lets a court modify or terminate a trust on petition of a trustee or qualified beneficiary when its purposes are fulfilled or impracticable, unforeseen circumstances would defeat a material purpose, or a material purpose no longer exists; spendthrift clauses are a factor but not a bar. section 736.0412 allows nonjudicial modification after the settlor’s death by unanimous agreement of the trustee and all qualified beneficiaries, with exceptions for older trusts and certain others.
Both statutes state they are in addition to the common law. Peck confirms that the common-law path still exists: when the settlor and every beneficiary agree, an irrevocable trust can be ended, and an objecting trustee cannot stop it on the ground that the trust’s protective purpose is unfinished.
Current law (2026): Sections 736.04113 and 736.0412 (2026) each still state they are in addition to, and not in derogation of, common-law rights to modify, amend, terminate, or revoke trusts. Section 736.0412 was amended in 2022 (ch. 2022-96) regarding which trusts it applies to; the Peck holding rests on the common law, which remains intact.
Lessons
- Who signs as settlor matters. A parent who funds a trust but has the child sign as settlor may lose control over whether it can be ended.
- If you want a protective trust that cannot be unwound by consent, the person whose money it is should be the settlor, and the document should be drafted with that goal in mind.
- A spendthrift clause and a no-amendment clause do not, by themselves, stop termination when the settlor and all beneficiaries agree.
- A trustee’s concern that a beneficiary will waste the money is not enough to block termination by consent under Florida common law.
Source: Peck v. Peck, No. 2D13-113, 133 So. 3d 587 (Fla. 2d DCA 2014) — Fla. 3d DCA (February 26, 2014).
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.
A Trust Built to Protect Her From Herself: Can an Irrevocable Trust Be Modified Anyway? | Peck v. Peck, 2D13-0113
Go Deeper
- Do You Need a Trust in Florida? What a Living Trust Does, What It Doesn't, and Who Actually Needs One
- Florida Trustee Duties and Beneficiary Rights: Accountings, Self-Dealing, and the 6-Month Deadline
- When a Revocable Trust Doesn't Work: Unfunded Trusts and Trust Litigation in Florida
Frequently Asked Questions
Can an irrevocable trust be terminated in Florida?
Yes, in several ways. A court can modify or terminate one under section 736.04113, the trustee and qualified beneficiaries can modify certain trusts after the settlor dies under section 736.0412, and under the common law confirmed in Peck v. Peck, the settlor and all beneficiaries can agree to end it.
Can a trustee stop beneficiaries from ending a trust?
Not on the ground that the trust’s purposes are unfulfilled, if the settlor and every beneficiary consent. In Peck, a co-trustee objected that the beneficiary might waste the money, but the court upheld termination because the settlor and all beneficiaries agreed.
Does a spendthrift clause prevent modifying a Florida trust?
No, not by itself. Section 736.04113 makes spendthrift provisions a factor the court considers, not a bar, and section 736.0412 says a spendthrift clause does not prohibit nonjudicial modification. Peck allowed termination by consent despite a spendthrift clause.
How can a parent make a protective trust harder to undo?
The parent should generally be the settlor of the trust holding the parent’s own assets, and the document should be drafted with the risk of termination by consent in mind. Peck noted that if the father had been the settlor, he likely could have drafted around common-law termination. Get drafting advice.
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.
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.
