Trust Decanting in Florida

Trust decanting lets a trustee move assets from an existing irrevocable trust into a new trust with different, and usually stronger, terms. Florida’s decanting statute, § 736.04117, authorizes this without court approval. For trusts drafted before modern asset protection standards developed, decanting is often the most direct way to add a spendthrift clause, convert mandatory distributions to discretionary ones, or change the trust’s governing jurisdiction.

An older irrevocable trust does not have to stay frozen in whatever form the original drafter chose. If the trust exposes a beneficiary to creditors because it requires annual income distributions or lacks a spendthrift provision, decanting can fix both problems.

Who Can Decant a Florida Trust?

Florida law limits the decanting power to an “authorized trustee” (any trustee other than the settlor or a beneficiary who holds the power to invade trust principal). A beneficiary serving as sole trustee cannot decant. An independent trustee or a corporate trustee qualifies only when the trust lets that trustee invade principal. Authority over income distributions alone is not enough.

If the only named trustee is also a beneficiary, the trust document can authorize that trustee to appoint a special co-trustee to exercise the decanting power. Without that provision, the appointment has to come from a court. Under § 736.0704(5), a judge may appoint an additional trustee or special fiduciary whenever the court considers it necessary to administer the trust, whether or not a trusteeship is vacant.

The 2025 amendments to § 736.04117 (SB 262, codified as ch. 2025-159) clarified that an authorized trustee who creates the second trust instrument is not considered the settlor of the second trust. Before this clarification, some practitioners hesitated to exercise the decanting power. The concern was that a trustee who drafted the new trust document could be treated as its settlor, disqualifying that trustee from serving as trustee of the second trust.

Absolute Power vs. Limited Power

How much a trustee can change through decanting depends on the terms of the original trust’s power to invade principal.

Absolute power means the trustee’s authority to distribute principal is not limited to specific or ascertainable purposes. Trust language granting discretion to distribute principal for a beneficiary’s “best interests,” “welfare,” “comfort,” or “happiness” confers absolute power. A trustee with absolute power can rewrite the distribution standards in the second trust and leave out beneficiaries the first trust named, provided no vested interest is reduced.

That trustee can also create or modify powers of appointment, but cannot take away a general power a beneficiary can already exercise. The second trust may also run longer than the first. A longer term is not a fresh perpetuities period. Under § 736.04117(7)(b), the second trust’s perpetuities period still begins when the first trust’s began.

Limited power means the trustee’s authority is confined to ascertainable standards such as health, education, maintenance, and support (HEMS). Before the 2018 amendments, a trustee with limited power could not decant at all. The revised statute opened decanting to limited-power trustees, but with constraints. The second trust must grant each beneficiary a beneficial interest “substantially similar” to the one that beneficiary held in the first trust. The trustee cannot eliminate beneficiaries, and the distribution standards in the second trust must materially preserve each beneficiary’s position.

The distinction between absolute and limited power determines which asset protection modifications are available through decanting.

How Decanting Strengthens Creditor Protection

Older irrevocable trusts are often the weakest link in a family’s asset protection. Trusts drafted in the 1980s and 1990s routinely required mandatory income distributions, lacked spendthrift clauses, or used distribution standards that give creditors a foothold. Decanting addresses each of these problems.

Converting Mandatory Distributions to Discretionary

A trust that requires the trustee to distribute all income annually leaves the beneficiary with a right a creditor can attach. Where the trust carries no spendthrift clause, § 736.0501 lets a court authorize the creditor to attach present and future distributions. A spendthrift clause takes that remedy away from an ordinary creditor. Under § 736.0506, a creditor can still reach a mandatory distribution the trustee has failed to make within a reasonable time after it came due.

A trustee with absolute power can decant the trust into a second trust that replaces mandatory distributions with wholly discretionary authority. Under § 736.0504(2), a creditor of a beneficiary cannot compel distributions from a trust where the trustee has discretion over whether, when, and how much to distribute.

That conversion is not available where the beneficiary’s income right is already vested. Section 736.04117(1)(k) counts a current unconditional right to a mandatory income distribution as a vested interest. A decanting may not reduce one. Under the same subsection, the right is not vested where the trustee has discretion to distribute trust property to someone other than that beneficiary.

A trustee with limited (HEMS) power faces constraints. The second trust must provide “substantially similar” interests, so the trustee cannot eliminate a mandatory income distribution entirely. The trustee may restructure distribution timing and conditions within the “substantially similar” requirement, but a complete conversion to discretionary authority is not available under the limited-power tier.

Adding or Strengthening Spendthrift Provisions

Many older trusts were drafted without spendthrift provisions, or with provisions that do not meet current statutory requirements. Florida § 736.0502 requires a spendthrift provision to restrain both voluntary and involuntary transfers of the beneficiary’s interest. A provision that restricts only voluntary transfers does not qualify.

A trustee with absolute power can decant into a second trust that includes a fully compliant spendthrift clause. Adding a spendthrift provision does not reduce a vested interest (it protects the beneficiary’s interest rather than eliminating it), so this modification is generally permissible even when the first trust lacked spendthrift protection entirely.

A trustee with limited power can also add a spendthrift provision to the second trust. Adding creditor protection to an existing beneficial interest does not change the nature or amount of that interest. That keeps the change within the limited-power trustee’s authority under the “substantially similar” standard.

Changing Trust Situs and Governing Law

A Florida trust can be decanted into a trust governed by a different state’s law when the destination jurisdiction offers stronger creditor protection. Some states provide broader discretionary distribution protection, longer trust durations, or stronger spendthrift enforcement than Florida.

The authorized trustee decants the assets into a second trust that designates the new jurisdiction as its situs and governing law, with a trustee licensed or resident in the destination state. The situs change does not require court approval under the decanting statute, though the trustee must comply with the 60-day notice requirement.

For trusts holding Florida real estate, a situs change may not fully shift the governing law because Florida courts retain jurisdiction over property within the state. A common approach is decanting the trust’s financial assets to the new jurisdiction while keeping Florida-situs property in the original trust or transferring it into a trust-owned LLC.

Separating Trusts to Isolate Creditor Exposure

A trustee with absolute power can separate a single trust into multiple trusts through decanting, creating one for each beneficiary. When one beneficiary faces creditor exposure and others do not, the exposed beneficiary’s trust can be structured with maximum discretionary protection while trusts for other beneficiaries are designed according to their individual circumstances.

Separating trusts also prevents a creditor from arguing that the trustee must make distributions because the trust has sufficient assets to serve all beneficiaries. With separate trusts, each beneficiary’s share stands on its own.

S Corporation Election Risk

Florida’s decanting statute bars a decanting that would cost an S corporation its election. Only certain trusts qualify as S corporation shareholders: grantor trusts, qualified subchapter S trusts (QSSTs), and electing small business trusts (ESBTs). Under § 736.04117(5)(b), an authorized trustee may not distribute S corporation stock to a second trust that is not a permitted shareholder. Where the first trust is a qualified subchapter S trust, the second trust instrument may not include or omit any term that would disqualify it.

A QSST requires a single income beneficiary and mandatory distribution of all income. Decanting a QSST into a discretionary trust strips the mandatory income distribution the QSST rules require, which is the result § 736.04117(5)(b) forbids. Electing ESBT treatment for the second trust does not cure the problem, because the statute requires the second trust to keep qualifying as a QSST. A trustee who proceeds anyway puts the corporation’s pass-through status at risk.

The 2025 amendments to Florida’s decanting statute (SB 262) addressed a related problem. The new law allows an authorized trustee to structure a decanting as a modification of the original trust rather than creating a new trust. Doing so can eliminate the need to obtain a new EIN, redo S corporation elections, or re-title assets. Any of those steps can disrupt an S election if handled incorrectly or late.

Any trust holding S corporation stock should coordinate with a tax advisor before decanting. The asset protection gained by converting to discretionary distributions must be weighed against the tax cost if pass-through status is lost. The S corporation election strategy must be settled before the trustee decants.

Procedural Requirements

The authorized trustee must give written notice at least 60 days before exercising the decanting power. Under § 736.04117(8)(a), that notice goes to every qualified beneficiary of the first trust, every trustee of the first trust, and anyone who can remove or replace the authorized trustee. The settlor of the first trust must also be notified where the grantor-trust provision in paragraph (5)(c) applies.

The notice states how the trustee intends to exercise the power. The trustee meets the requirement by delivering the proposed instrument exercising the power along with both trust instruments to everyone entitled to notice.

The waiting period ends early only if everyone entitled to notice waives it by signed writing delivered to the trustee. One beneficiary’s waiver does nothing. An objection does not stop the decanting on its own. Section 736.04117 preserves a beneficiary’s right to object, but it does not require the trustee to get court approval before proceeding.

Decanting does not require court approval. The exercise must be in writing, signed and acknowledged by the authorized trustee, and filed with the records of the first trust. The trustee then executes the second trust instrument and transfers the assets from the first trust to the second.

The 2025 amendments also clarified that the decanting notice is not a trust disclosure document that triggers the statute of limitations for breach-of-fiduciary-duty claims. Before this change, a decanting notice could have been read as starting that limitations clock, cutting short the time beneficiaries had to bring a claim.

Limitations

Florida’s decanting statute does not permit every modification.

A decanting cannot reduce a vested interest. If a beneficiary has a current, unconditional right to receive a distribution, the second trust cannot eliminate or diminish that right. A trust that requires a lump-sum distribution at age 25 cannot be decanted to eliminate that distribution if the beneficiary has already reached 25 and the right has vested. If the beneficiary has not yet reached the triggering age, the interest is not yet vested and the modification is permissible under the absolute-power tier.

The authorized trustee cannot increase the trustee’s own compensation beyond what the first trust provides, relieve the trustee of liability for breach of trust, or increase indemnification beyond the original trust’s terms.

A decanting cannot add the settlor as a beneficiary of the second trust. Section 736.04117(2)(a)1 allows the second trust to include only beneficiaries of the first trust, so a settlor who was not already a beneficiary cannot be written in. Writing the settlor in anyway would put the trust under § 736.0505(1)(b), which lets the settlor’s creditors reach whatever the trustee could distribute to the settlor.

If the original trust explicitly prohibits decanting, the trustee must honor that restriction. The statutory decanting power is a default rule that the trust instrument can override. Under § 736.04117(9), neither a spendthrift clause nor a clause barring amendment or revocation counts as that kind of prohibition.

Decanting vs. Other Modification Methods

Florida provides several methods for modifying irrevocable trusts, including judicial modification, nonjudicial modification by consent, and reformation.

Feature	Decanting	Judicial Modification	Nonjudicial Modification
Court approval required	No	Yes	No
Public record	No	Yes (court filings)	No
Settlor consent required	No	Varies	No (only after the settlor’s death)
Beneficiary consent required	No (notice only)	Varies	Yes (all qualified beneficiaries)
Scope of changes	Broad (absolute power) or limited (HEMS power)	Broad (court discretion)	Requires unanimous agreement; not for pre-2001 trusts

Judicial modification becomes public record, which undermines the confidentiality that many trust settlors intended. Decanting preserves privacy because the process occurs outside the court system. For asset protection purposes, the absence of a public record means creditors are less likely to discover the modification and challenge its terms.

Nonjudicial modification under § 736.0412 is available only after the settlor’s death, and then only on the unanimous agreement of the trustee and all qualified beneficiaries. Unanimity may be impractical when the beneficiaries include minors, incapacitated persons, or people whose interests conflict. Decanting requires only trustee action with notice, so it stays available while the settlor is alive and when consent is hard to get.

The 2025 legislation added another option: structuring a decanting as a modification of the first trust rather than a transfer to a second trust. This approach preserves the original trust’s EIN, avoids re-titling assets, and can simplify tax consequences, particularly for trusts holding S corporation stock or trusts with allocated GST exemptions.

Tax Considerations

Decanting generally does not trigger income tax consequences when the second trust is treated as a continuation of the first trust for federal tax purposes. The IRS has not issued formal guidance on the tax treatment of trust decanting, but most practitioners treat the transfer as a nontaxable event when the second trust’s beneficiaries and distribution provisions are substantially similar to the first trust’s terms.

Two scenarios create tax risk. Decanting that changes the trust from a grantor trust to a non-grantor trust (or the reverse) may trigger recognition of gain on appreciated assets. Decanting that extends the trust’s duration beyond the original term may implicate generation-skipping transfer tax issues if the original trust was exempt from GST tax.

Trusts holding S corporation stock face an additional risk. Decanting into a trust that does not qualify as a QSST, ESBT, or grantor trust terminates the S election. The 2025 modification-as-alternative provision reduces but does not eliminate this risk, because the substantive changes to distribution standards still affect whether the trust qualifies as a permitted S corporation shareholder.

Decanting falls on the IRS’s “no-rule” list, so a trustee cannot request a private letter ruling before proceeding. The trust’s accountant must evaluate tax consequences before decanting, particularly when the trust holds highly appreciated assets, has an allocated GST exemption, or owns interests in pass-through entities.