Can an Irrevocable Trust be Modified Under Florida Law?
September 7, 2022
The short answer to this question is yes.
What is an irrevocable trust? It is a trust document that generally is not subject to revocation or modification, once executed and funded. There are exceptions which may permit the changing of the terms of an irrevocable trust.
The Florida Trust Code, Chapter 736 of the Florida Statutes, allows a court to modify an irrevocable trust where the modification is consistent with the intent of the grantor. Particularly, Fla. Stat. 736.04113 provides, in relevant part:
1) Upon the application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2), if:
(a) The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill;
(b) Because of circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust; or
(c) A material purpose of the trust no longer exists.
Most commonly, when modification of an irrevocable trust is sought, there has been an unanticipated change in circumstances. For instance, modification may be necessary due to a change in one’s personal financial condition or perhaps following a family member’s death. Importantly, the Florida courts have broad discretion to change or terminate a trust, and may even make changes on how the trust assets will be distributed if it finds doing so is necessary. See Fla. Stat. 736.0201.
Moreover, the court may also modify a trust when compliance with the terms of the trust no longer is in the beneficiaries’ best interest. Even though the court has discretion to make modifications in this regard, the court also must conform to the extent possible with the grantor’s intent when it makes a change to the trust. See Fla. Stat. 736.04115.
Modification of an irrevocable trust is permitted as well, without the court first having to make any findings about the practicability of the trust. The grantor and beneficiaries could agree or consent to either change or terminate the trust and petition the court to modify the trust. There are circumstances where this may make sense if the grantor and all beneficiaries wish to change the trust’s terms.
Non-judicial modification may also be an option, however that is also dependent upon the terms of the trust document itself.
The court is also permitted to reform a trust to correct mistakes in an irrevocable trust, to assure the trust reflects the grantor’s intent. When the grantor, or another interested party, seeks court intervention to reform a trust, the court will look to the trust’s language, but may grant the relief even if the language of the trust is unambiguous. To show reformation should be made, proof that the grantor’s intent was affected by the mistake will be needed for the court. See Fla. Stat. 736.0415.
On all these issues regarding changing or modifying an irrevocable trust, it is imperative to speak with your trust lawyer.