Irrevocable Trust in Florida: How It Works Under Florida Law

An irrevocable trust in Florida is a trust that the settlor, the person who creates it, cannot revoke or amend alone. Under the Florida Trust Code, chapter 736, Florida Statutes, a trust is revocable unless its terms expressly provide that it is irrevocable (s. 736.0602(1), as of October 2026). Once it is irrevocable, its terms change through routes Florida law provides, such as a court order, a trustee’s decanting power or, after the settlor’s death, an agreement of the trustee and the qualified beneficiaries (ss. 736.04113, 736.04117 and 736.0412).

On this page

• What makes a trust irrevocable in Florida
• Creating and signing one in Florida
• How an irrevocable trust can be changed in Florida
• Creditors and asset protection under Florida law
• The trustee’s duties
• Common situations in Florida
• Limits and trade-offs
• How it fits with the other Florida documents
• Frequently asked questions
• Planning with Plan Ahead

What makes a trust irrevocable in Florida

Florida law defines “revocable” as revocable by the settlor without the consent of the trustee or of a person holding an adverse interest (s. 736.0103(20), as of October 2026). The rule that a trust is revocable unless its terms expressly say otherwise does not apply to a trust created under an instrument signed before the Code took effect on July 1, 2007 (ss. 736.0602(1) and 736.1303(1)). Florida’s general requirements for creating a trust, such as the settlor’s capacity and intent, also apply (s. 736.0402(1)).

Creating and signing one in Florida

Chapter 736 requires the formalities of a will only for the death provisions of a revocable trust (s. 736.0403(2)(b), as of October 2026). Plan Ahead’s irrevocable life insurance trusts are signed with two witnesses and a notary, like its other documents. A trust of land must be proved by a signed writing or a will (ss. 736.0403(2)(a) and 689.05), and a deed moving real estate into the trust must be signed in the presence of two subscribing witnesses (s. 689.01(1)). A trust created in another state is valid in Florida if its creation complied with the law of the place where it was signed or of the settlor’s domicile at the time (s. 736.0403(1)).

How an irrevocable trust can be changed in Florida

Florida offers several routes, each with conditions:

• Court modification. On application of the trustee or any qualified beneficiary, a court may modify or terminate a trust that is not then revocable if its purposes have been fulfilled or have become illegal, impossible, wasteful or impracticable, if circumstances the settlor did not anticipate would defeat or substantially impair a material purpose, or if a material purpose no longer exists (s. 736.04113(1) and (2), as of October 2026). A court may also modify one when complying with its terms does not serve the beneficiaries’ interests, but not a trust created before January 1, 2001 or one whose terms expressly prohibit judicial modification (s. 736.04115(1) and (3)).
• Agreement after the settlor’s death. After the settlor dies, the trustee and all qualified beneficiaries may modify the trust by unanimous agreement, even if it has a spendthrift clause or bars amendment (s. 736.0412(1) and (2)). Exceptions include trusts created before January 1, 2001 (s. 736.0412(4)).
• Decanting. Unless the trust says otherwise, a trustee other than the settlor or a beneficiary who has power to invade principal may modify the trust or appoint principal to a second trust, within limits that depend on how broad that power is (s. 736.04117(1)(b), (2) and (3)). The trustee must give the qualified beneficiaries, among others, at least 60 days’ written notice (s. 736.04117(8)(a)).
• Mistakes, tax goals and small trusts. A court may reform a trust to correct a mistake proved by clear and convincing evidence (s. 736.0415) or modify it to achieve the settlor’s tax objectives (s. 736.0416). After notice to the qualified beneficiaries, a trustee may terminate a trust worth less than $50,000 if the trustee concludes its value does not justify the cost of administration (s. 736.0414(1)).

Creditors and asset protection under Florida law

With respect to an irrevocable trust, a creditor of the settlor may reach the maximum amount that can be distributed to or for the settlor’s benefit, whether or not the trust has a spendthrift provision (s. 736.0505(1)(b), as of October 2026).

For beneficiaries other than the settlor, a spendthrift provision is valid only if it restrains both voluntary and involuntary transfers (s. 736.0502(1)). With a valid provision, a beneficiary’s creditor may not reach the interest or a distribution before the beneficiary receives it, except as part V of the Code provides (s. 736.0502(3)). The exceptions include a child, spouse or former spouse with a judgment or court order for support or maintenance, and claims of Florida or the United States where a law so provides, each to the extent s. 736.0503(3) allows (s. 736.0503(2)). When distributions are at the trustee’s discretion, a beneficiary’s creditor may not compel one (s. 736.0504(2)).

A transfer is fraudulent as to a creditor if made with actual intent to hinder, delay or defraud any creditor (s. 726.105(1)(a)). That claim must generally be brought within 4 years after the transfer or, if later, within 1 year after it was or could reasonably have been discovered (s. 726.110(1)).

The trustee’s duties

A Florida trustee must administer a trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries (s. 736.0801, as of October 2026). Within 60 days after learning that an irrevocable trust was created, or that a revocable trust has become irrevocable, the trustee must notify the qualified beneficiaries of, among other things, the trust’s existence, the settlor’s identity, and their rights to request a copy of the trust instrument and to receive accountings (s. 736.0813(1)(b)). The trustee must also account to each qualified beneficiary at least annually, unless that beneficiary waives it in writing (s. 736.0813(1)(d) and (2)).

Unless the terms set the trustee’s pay, the trustee is entitled to reasonable compensation (s. 736.0708(1)).

Common situations in Florida

• Life insurance and estate tax. No Florida estate tax return is required for deaths after December 31, 2004 when no federal state death tax credit is allowable (s. 198.13(4), as of October 2026), and Congress repealed that credit in 2014 (Pub. L. 113-295; former 26 U.S.C. s. 2011). For a Florida resident, estate tax planning with a life insurance trust is a federal question. Plan Ahead prepares irrevocable life insurance trusts for Florida clients.
• A beneficiary with a disability. Unless the trust says otherwise, a trustee other than the settlor or a beneficiary who has power to invade principal for a beneficiary with a disability may move principal into a supplemental needs trust, if the trustee determines that doing so furthers the first trust’s purposes (s. 736.04117(1)(b) and (4)(a)).
• The Florida home. An owner of homestead real estate, joined by the spouse if married, may sell, mortgage or give it away (art. X, s. 4(c), Fla. Const.). A lifetime transfer of homestead in trust is not a devise under Florida’s homestead limits if the owner keeps no power, in any capacity, to revoke or revest the interest (s. 732.4017(1)).

Limits and trade-offs

• Less control. The settlor gives up the power to revoke or amend alone (s. 736.0103(20), as of October 2026), and later changes depend on routes such as those above.
• Divorce. The statute that voids provisions for a former spouse on divorce covers revocable trusts (s. 736.1105(2)); it does not mention irrevocable trusts.

How it fits with the other Florida documents

• Revocable Living Trust. Revocable trust property is subject to the settlor’s creditors during life unless it would be exempt if owned directly (s. 736.0505(1)(a), as of October 2026).
• Durable Power of Attorney. An agent can create a trust for the principal only if the principal signed or initialed next to that power (s. 709.2202(1)(a)).

Frequently asked questions

Can a revocable trust become irrevocable in Florida?

Yes. The Code refers to a formerly revocable trust that has become irrevocable “whether by the death of the settlor or otherwise,” and the trustee’s 60-day notice duty then applies (s. 736.0813(1)(b), as of October 2026).

Does an irrevocable trust protect assets from creditors in Florida?

It depends on who can benefit. A settlor’s creditors may reach what can be distributed to the settlor (s. 736.0505(1)(b), as of October 2026), while a valid spendthrift provision limits what a beneficiary’s creditors may reach (s. 736.0502(3)).

Who pays taxes on an irrevocable trust in Florida?

Florida requires no state estate tax return for deaths after 2004 when no federal state death tax credit is allowable (s. 198.13(4), as of October 2026). Unless the trust provides otherwise, a trustee may, in its sole discretion, reimburse a person taxed on the trust’s income under the federal grantor trust rules (s. 736.08145(1)(a)).

Planning with Plan Ahead

Plan Ahead’s Florida services include asset protection planning, special needs trusts, gun trusts and Florida homestead planning, along with wills, revocable living trusts and durable powers of attorney. Of the irrevocable trusts described on this page, Plan Ahead prepares irrevocable life insurance trusts for Florida clients. Planning meetings may be by Zoom; Florida signings take place in person, at our Lake Worth Beach office or the client’s home, with two witnesses and a notary provided by the firm. Schedule a complimentary Peace of Mind Planning Session, or see estate planning in Florida.

Related reading

• Revocable Living Trust in Florida: How It Works Under Florida Law
• Florida Homestead and the Estate Plan: Who Can Inherit the Home
• Irrevocable Life Insurance Trusts and the Illinois Estate Tax

This article is for informational purposes only and is not legal advice. No attorney-client relationship is formed by reading it.