Florida Statute 736.0402
“Requirements for creation”
What it means
A trust is created only if all of these are met: the settlor has capacity; the settlor indicates an intent to create the trust; the trust has a definite beneficiary or is a charitable trust, a trust for the care of an animal (§ 736.0408), or a trust for a noncharitable purpose (§ 736.0409); the trustee has duties to perform; and the same person is not the sole trustee and sole beneficiary.
A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities. A trustee's power to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, it fails and the property passes to the persons who would have taken it had the power not been conferred.
- Five requirements: settlor capacity, settlor intent, a definite beneficiary or listed exception, trustee duties, and no merger of sole trustee and sole beneficiary (§ 736.0402(1)(a)-(e)).
- Exceptions to the definite-beneficiary requirement: a charitable trust, an animal trust (§ 736.0408), and a noncharitable purpose trust (§ 736.0409) (§ 736.0402(1)(c)1.-3.).
- A beneficiary is definite if ascertainable now or in the future, subject to any applicable rule against perpetuities (§ 736.0402(2)).
- A trustee's power to select a beneficiary from an indefinite class is valid (§ 736.0402(3)).
- If that power is not exercised within a reasonable time, it fails and the property passes to those who would have taken had the power not been conferred (§ 736.0402(3)).
Text of the statute (2026)
A trust is created only if: (a) The settlor has capacity to create a trust. (b) The settlor indicates an intent to create the trust. (c) The trust has a definite beneficiary or is: 1. A charitable trust; 2. A trust for the care of an animal, as provided in s. 736.0408; or 3. A trust for a noncharitable purpose, as provided in s. 736.0409. (d) The trustee has duties to perform. (e) The same person is not the sole trustee and sole beneficiary.
A beneficiary is definite if the beneficiary can be ascertained now or in the future, subject to any applicable rule against perpetuities.
A power of a trustee to select a beneficiary from an indefinite class is valid. If the power is not exercised within a reasonable time, the power fails and the property subject to the power passes to the persons who would have taken the property had the power not been conferred.
Excerpts are the subsections the summary relies on. Read the full official text of § 736.0402.
History. s. 4, ch. 2006-217.
How it applies
Section 736.0402 is the threshold test for whether a trust exists. An arrangement in which one person is both the only trustee and the only beneficiary does not meet paragraph (1)(e). A document that identifies no ascertainable beneficiary and is not a charitable, animal, or noncharitable purpose trust does not meet paragraph (1)(c).
Where this shows up
Pages on this site where § 736.0402 does real work:
Related sections
Questions people ask
Sources
- Florida Statutes (2026), s. 736.0402 (Official text and History line.)
- Florida Statutes (2026), s. 736.0408 (Animal-trust exception to the definite-beneficiary requirement.)
- Florida Statutes (2026), s. 736.0409 (Noncharitable-purpose exception to the definite-beneficiary requirement.)
Last checked: October 17, 2026
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