Florida Statute 736.04117

“Absolute power” means a power to invade principal that is not limited to specific or ascertainable purposes, such as health, education, maintenance, and support, regardless of whether the term “absolute” is used. A power to invade principal for purposes such as best interests, welfare, comfort, or happiness constitutes an absolute power not limited to specific or ascertainable purposes.

“Authorized trustee” means a trustee, other than the settlor or a beneficiary, who has the power to invade the principal of a trust. For the purposes of this section, an authorized trustee will not be considered a settlor of a second trust, even if the authorized trustee created the trust instrument governing the second trust or made a distribution of assets from the first trust to the second trust. In determining settlor intent with respect to a second trust or a modification of the first trust, the intent of a settlor of the first trust, a settlor of the second trust, and the authorized trustee may be considered.

Unless a trust instrument expressly provides otherwise, an authorized trustee who has absolute power under the terms of the trust to invade its principal, referred to in this section as the “first trust,” to make current distributions to or for the benefit of one or more beneficiaries may instead exercise such power by modifying the terms of the first trust or by appointing all or part of the principal of the trust subject to such power in favor of a trustee of one or more other trusts, whether created under the same trust instrument as the first trust or a different trust instrument, including a trust instrument created for the purposes of exercising the power granted by this section, each referred to in this section as the “second trust,” for the current benefit of one or more of such beneficiaries only if:

DISTRIBUTION FROM FIRST TRUST TO SECOND TRUST WHEN AUTHORIZED TRUSTEE DOES NOT HAVE ABSOLUTE POWER TO INVADE.—Unless the trust instrument expressly provides otherwise, an authorized trustee who has a power, other than an absolute power, under the terms of a first trust to invade principal to make current distributions to or for the benefit of one or more beneficiaries may instead exercise such power by modifying the terms of the first trust or by appointing all or part of the principal of the first trust subject to such power in favor of a trustee of one or more second trusts. If the authorized trustee exercises such power:

The authorized trustee shall provide written notification of the manner in which he or she intends to exercise his or her power to invade principal to all of the following parties at least 60 days before the effective date of the authorized trustee’s exercise of such power pursuant to subsection (2), subsection (3), or subsection (4): 1. All qualified beneficiaries of the first trust. 2. If paragraph (5)(c) applies, the settlor of the first trust. 3. All trustees of the first trust. 4. Any person who has the power to remove or replace the authorized trustee of the first trust.

INAPPLICABILITY OF SPENDTHRIFT CLAUSE OR OTHER PROHIBITION.—The exercise of the power to invade principal under subsection (2), subsection (3), or subsection (4) is not prohibited by a spendthrift clause or by a provision in the trust instrument that prohibits amendment or revocation of the trust.