Florida Statute 736.04117
“Trustee's power to invade principal in trust”
What it means
Decanting is pouring the assets of one irrevocable trust into a new trust with better terms. §736.04117 allows it when an authorized trustee — one who is not the settlor or a beneficiary — holds a power to invade principal. How much the trustee can change depends on how broad that power is.
With an absolute power (not limited to a standard like health, education, maintenance, and support), the trustee has wide latitude to reshape the new trust. With a limited power, each beneficiary's interests in the new trust must stay substantially similar and no new beneficiaries may be added. Either way, the trustee first gives qualified beneficiaries at least 60 days' written notice.
- Only an authorized trustee — not the settlor or a beneficiary — with a power to invade principal may decant.
- Absolute power (broader than an ascertainable standard): wide latitude to reshape the second trust, so long as no vested interest is reduced.
- Limited power: each beneficiary's interests must remain substantially similar, and no beneficiaries may be added.
- Cannot cut a vested right to a mandatory distribution of income, a set dollar amount, or a percentage of value.
- Cannot defeat a federal tax benefit — marital or charitable deduction, S-corporation eligibility, and the like.
- Requires at least 60 days' written notice to qualified beneficiaries (waivable in writing); a spendthrift or no-amendment clause does not block it.
How it plays out
Decanting is how an outdated irrevocable trust gets modernized without a courtroom — a bad trustee-succession clause, a missing power, terms written for a tax world that no longer exists. The limits are the whole game. Whether the trustee holds an absolute or a merely limited power to invade principal decides how much can change, and no amount of decanting can strip a beneficiary's vested right or blow up a tax qualification the trust was built around. We map those two questions — how broad is the power, what is vested — before drafting the new trust, and calendar the 60-day notice so nobody can later say they were surprised.
Where this shows up
Pages on this site where § 736.04117 does real work: