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New Opportunities to Decant in Florida, Part I: Recent Changes to the Trust Decanting Statute

Elder Law

If a revocable trust is one that may be fully amended or revised in any way, then an irrevocable trust must be one that cannot be amended or revised in any way, right? Not necessarily. Most estate planning and elder law attorneys know this because it is not uncommon to face the scenario of what, if anything, can be done to address changes in circumstances or law after a trust becomes irrevocable. For decades, practitioners have relied upon common law and statutory trust modification to solve the problems that arise when unexpected changes occur.[1] As the saying goes, if all you have is a hammer, everything looks like a nail.[2] But perhaps there is a sexier tool in the practitioner’s toolbox, and it has recently had a makeover in Florida. This tool is decanting.

In part I of this article, I review the evolution of trust decanting in Florida and discuss the recent changes to Florida’s decanting statute, focusing in particular on one of the biggest changes to the statute, decanting to a supplemental needs trust. In part II of this article, I dissect the mechanics of trust decanting and explore decanting’s utility, again with particular emphasis on decanting’s effect on a trust beneficiary with special needs.

What Is Decanting?

In contrast to trust modification (and reformation, for that matter),[3] decanting is viewed as an extension of a trustee’s power to distribute trust assets.[4] Whereas modification, by virtue of being an amendment to existing trust language, works within the parameters of the existing trust instrument, decanting is a process that shifts trust corpus from one trust instrument to another. Think of the process of decanting wine: Wine is poured from a bottle to a decanter to allow it to breathe and mature. While the wine decanter or vessel changes, the wine itself — the trust corpus — remains the same, conforming and molding itself according to the parameters of the new decanter. This is the same for trust decanting.

Because of its flexibility and usefulness, decanting provides unique opportunities to remedy problems in trust administration or address changes in circumstances or law. It can be used to achieve certain tax objectives, change trust situs, expand or limit trustee powers, restrict beneficiaries’ rights to information, provide better asset protection by modifying spendthrift provisions, correct drafting errors, split or consolidate trusts, change beneficiaries through powers of appointment, provide nonjudicial avenues for ensuring trustee succession over time, and alter distributions to include special needs provisions. Given the right set of circumstances, the application of decanting can seem limitless.

Evolution of Decanting

Decanting is not new; it has evolved over time. While Florida has recognized a trustee’s common law authority to decant since 1940 with the case of Phipps v. Palm Beach Trust Co., 196 So. 299 (Fla. 1940), many state courts to date have not specifically addressed a trustee’s authority to decant. State legislatures, however, began addressing a trustee’s authority to decant in 1992, when the first decanting statute was passed in New York.[5] Since then, approximately half of all state legislatures (and growing each year) have enacted state statutes authorizing decanting, including Florida in 2007 with the passage of §736.04117 as part of the Florida Trust Code.[6] While decanting statutes vary widely from state to state, the underlying rationale is that if a trustee has discretionary power to distribute trust corpus to beneficiaries, this power constitutes a special power of appointment that enables the trustee to distribute trust corpus to a different trust for the benefit of the beneficiaries rather than directly to the beneficiaries themselves.[7]

As originally adopted, §736.04117 provided that a trustee with absolute power to invade principal of a trust to make distributions to one or more beneficiaries could exercise that power by appointing all or part of the trust principal subject to that power to the trustee of another trust for the benefit of one or more of the beneficiaries, so long as the beneficiaries of the second trust included only the beneficiaries of the first trust; the second trust did not reduce any fixed income, annuity, or unitrust interest in the trust assets; and the second trust did not interfere with any marital or charitable deduction taken by the first trust.[8] An “absolute power to invade principal” was defined as one that was not limited to a specific or ascertainable purpose, such as health, education, maintenance, and support, commonly referred to as “HEMS” or “ascertainable standard.”[9] For example, a trustee whose power to distribute principal was limited only by a more subjective standard, such as the beneficiary’s “best interests” or “happiness,” had an absolute power to invade principal. Many trusts do not grant a trustee such unfettered discretion, so many trusts were not candidates for decanting under §736.04117 as originally adopted.

For more than a decade §736.04117 remained unchanged, and, compared to other decanting statutes, it seemed relatively conservative. As of March 19, 2018, however, §736.04117 has been overhauled so that it is more in line with other states’ decanting statutes and the Uniform Trust Decanting Act.[10] The result is a much broader opportunity to decant Florida trusts and, thus, affect meaningful changes in irrevocable trust administrations.

Florida’s Current Decanting Statute

Under the revised §736.04117, decanting powers are granted to an “authorized trustee,” who is any trustee, other than the settlor or a beneficiary, with the power to invade trust principal.[11] Thus, a settlor who creates an irrevocable trust for the benefit of his or her living descendants with himself or herself as sole trustee is not an authorized trustee and, thus, may not decant.[12] That trustee, however, may be able to modify the trust or utilize existing trust provisions to appoint an additional trustee who qualifies as an authorized trustee who could decant.[13]

Similarly, a trustee who is also a trust beneficiary is not an authorized trustee (and, thus, may not decant) as to those portions of the trust held for his or her benefit, regardless of the extent of his or her power as trustee to invade principal.[14] However, if the trust were held for the benefit of several permissible beneficiaries, the trustee might be able to sever the trust into separate trusts and decant the severed trusts not held for his or her benefit, thereby effectively transforming himself or herself into an authorized trustee as to at least a portion of the first trust.

In order to decant, the power to distribute must be over principal; a power to distribute income without the power to distribute principal is not sufficient.[15] This is consistent with §736.04117 as originally enacted in 2007, but one key difference is the extent of an authorized trustee’s power to distribute principal. In contrast to the statute as originally enacted, an authorized trustee now need not have absolute power to distribute principal in order to decant. Instead, decanting is allowed regardless of whether an authorized trustee has the absolute power to distribute principal or a power to distribute principal that is limited to an ascertainable standard. Thus, regardless of the scope of an authorized trustee’s power to distribute principal, an authorized trustee may appoint all or part of the principal of the trust (referred to as “first trust”) in favor of a trustee of one or more other trusts (referred to as “second trust”) held for one or more beneficiaries in a way that could change distribution provisions, administrative powers, fiduciary obligations, and even the trust situs from Florida to any other jurisdiction.[16]

But there’s a catch: While an authorized trustee may decant regardless of the extent of the power to invade principal, the scope of the changes made through decanting is dictated by the extent of the trustee’s power. In other words, the broader the power to invade principal, the broader the scope of decanting.

Decanting with Absolute Power

An authorized trustee with absolute power to distribute principal may appoint all or part of the principal of the first trust in favor of a trustee of one or more second trusts held for the current benefit of one or more beneficiaries of the first trust.[17] The second trust may eliminate (but not add) beneficiaries so long as no vested interest is reduced.[18] The second trust may omit most[19] powers of appointment granted in the first trust, modify existing powers of appointment, and create new powers of appointment. The second trust may even effectively extend the trust term past the term of the first trust so long as the rule against perpetuities is not violated.[20] In all, an authorized trustee with absolute power to distribute principal may affect the broadest range of changes to a trust.

Decanting with Limited Power

In contrast, if an authorized trustee’s power to distribute principal is limited to an ascertainable standard, the power to decant is, well, not so broad, at least with regard to how decanting impacts the beneficial interests of the beneficiaries. Unlike an authorized trustee with absolute power, an authorized trustee with limited power may not eliminate beneficiaries through decanting.[21] Instead, each beneficiary of the first trust must have a substantially similar interest in the second trust during the term of the first trust.[22]

The concept of “substantially similar” is rather subjective. “Substantially similar” is defined as “no material change in a beneficiary’s beneficial interest or in the power to make distributions and that the power to make a distribution under a second trust for the benefit of a beneficiary who is an individual is substantially similar to the power under the first trust to make a distribution directly to the beneficiary.”[23] This standard is satisfied when a distribution is applied for the benefit of a beneficiary; when the beneficiary is under a legal disability or the trustee reasonably believes the beneficiary is incapacitated and distribution is made as otherwise permitted under the Florida Trust Code; or when distribution is made as permitted under the terms of the first trust and the second trust for the benefit of the beneficiary.[24] Arguably, the standard of “substantially similar” might prohibit an authorized trustee from adding certain provisions to the second trust that are designed to protect beneficiaries from themselves, such as provisions that suspend distributions if a beneficiary has a substance abuse issue or creditor issue.

Despite the concept of “substantially similar,” an authorized trustee with limited power still has a fair amount of power to affect changes to a trust. If an authorized trustee exercises the decanting power in a way to extend the trust term beyond that of the first trust, then the trust instrument of the second trust may, with respect to the property subject to that extended time period, include language giving the trustee the absolute power to invade the principal of the second trust during that extended time period, which conceivably opens the door to changing the beneficiaries during the extended time period through a second decanting.[25] Moreover, with respect to the property subject to that extended time period, the authorized trustee may create powers of appointment in those individuals who were beneficiaries of the first trust and expand the class of permitted appointees of any powers of appointment existing in the first trust, again thereby effectively changing the potential beneficiaries during the extended time period.[26]

Decanting to Supplemental Needs Trusts

Perhaps the most significant change to §736.04117 was the addition of specific authority to decant trusts for the benefit of disabled beneficiaries to supplemental needs trusts so long as an authorized trustee has the power to invade and distribute principal, regardless of the scope of that power.[27] While there are still some restrictions, this power is quite useful for beneficiaries who may qualify or require needs-based public benefits.

Under §736.04117(4)(a), an authorized trustee who has the power to invade principal of a trust to make current distributions to or for the benefit of a beneficiary with a disability may exercise that power to distribute some or all of the trust principal to a second trust that is a supplemental needs trust, provided that the supplemental needs trust benefits the beneficiary with a disability; the beneficiaries of the second trust include only beneficiaries of the first trust;[28] the interests of all beneficiaries other than the disabled beneficiary remain substantially similar; and the authorized trustee determines that decanting will further the purposes of the first trust.[29]

Benefits-Related Requirements

To help dissect this authority to decant to a supplemental needs trust, it is helpful to review the definitions specifically applicable to subsection (4).

1) A “beneficiary with a disability” means “a beneficiary of the first trust who the authorized trustee believes may qualify for government benefits based on disability, regardless of whether the beneficiary currently receives those benefits or has been adjudicated incapacitated.”[30] An authorized trustee need only have a “belief” that the beneficiary “may” qualify for government benefits; there is no explicit requirement that any objective standard be met.[31] There is also no explicit requirement that the beneficiary actually be receiving benefits. However, the benefits must be those based on disability, not any other criteria, such as financial need. For example, an authorized trustee could not use §736.04117(4) to decant in order to qualify a disabled beneficiary for a financial needs-based college grant or scholarship.

2) “Government benefits” means “financial aid or services from any state, federal, or other public agency.”[32] It does not include benefits from any private entity. Therefore, a trustee could not decant under §736.04117(4) solely in order to qualify a disabled beneficiary for a program or benefits sponsored by a private entity.

3) “Supplemental needs trust” means “a trust that the authorized trustee believes would not be considered a resource for purposes of determining whether the beneficiary who has a disability is eligible for government benefits.”[33] As with the definition of “beneficiary with a disability,” an authorized trustee merely must “believe” that the trust would not be considered a resource for public benefits purposes. Presumably (but not specified in the statute), this belief must be reasonable and not capricious. The extent to which an authorized trustee must self-educate or consult professionals to confirm the trust’s viability as a supplemental needs trust is not detailed.

Considering these definitions in totality, it appears that a trust may be decanted under §736.04117(4) for the benefit of a beneficiary who receives (or could receive) Supplemental Security Income (SSI), which is a cash-assistance government benefit for disabled individuals with limited resources and income that also qualifies the recipient for Medicaid.[34] Section 736.04117(4) was likely conceived for this type of circumstance so that resources that would otherwise be counted for benefits eligibility purposes would be considered non-countable, thereby allowing a disabled individual to qualify for and receive SSI and Medicaid.

However, because the term “government benefits” in no way specifies that the benefits must be needs-based, it also appears that a trust may be decanted under §736.04117(4) for the benefit of an individual who receives government benefits based upon disability but not financial need, such as Social Security Disability Insurance (SSDI). “Government benefits” merely requires that “financial aid or services” are received, and SSDI, which is a cash assistance program for individuals whose disability prevents them from working with eventual eligibility for Medicare services, seems to meet that definition.[35] Further, because qualification for SSDI is made without regard to assets, by definition a “supplemental needs trust” would not be considered a resource for SSDI-eligibility purposes.[36]

Using §736.04117(4) to decant a trust held for a beneficiary who is currently receiving SSDI may be important from a long-term perspective. Disabled beneficiaries may later require one or more needs-based government benefit programs, particularly those Medicaid programs that provide long-term care services. To the extent that decanting a trust for a beneficiary with a disability might result in the second trust being considered a self-settled special needs trust under federal law,[37] and if the beneficiary might later require Medicaid long-term care benefits, it would be important to decant prior to the beneficiary reaching age 65, which is the statutory age restriction for establishing self-settled special needs trusts under 42 U.S.C. §1396p(d)(4)(A).

Furthering Purpose of Trust

In addition to the benefits-related requirements, an authorized trustee decanting under §736.04117(4) must determine that exercising the decanting power will further the purposes of the first trust.[38] This requires an authorized trustee to consider the settlor’s intent.[39] In most cases, if a settlor intended to provide support for a beneficiary but did not consider or could not anticipate the beneficiary’s disability, it would further the purposes of the trust to decant to a supplemental needs trust that would allow the beneficiary to qualify for government benefits while still allowing discretionary trust distributions to benefit the beneficiary.

To illustrate, assume that a trust is established with the following terms:

1) An authorized trustee has the power to distribute income and principal to a beneficiary with a disability according to the ascertainable standard until the beneficiary reaches age 25.

2) When the beneficiary reaches age 25, the beneficiary has a right to net income and the authorized trustee may invade principal to benefit the beneficiary according to the ascertainable standard.

3) The authorized trustee must distribute to the beneficiary one-third of principal at age 30; half of the remaining principal at age 35; and the balance at age 40.

4) The beneficiary holds a testamentary general power of appointment over any assets remaining in trust at the time of death, in default of which the assets are distributed to the beneficiary’s siblings, per stirpes.[40]

If the disabled beneficiary is age 26, the authorized trustee may decant to distribute the principal to a supplemental needs trust that permits distributions of principal and income to the beneficiary in the authorized trustee’s absolute discretion for the beneficiary’s lifetime, with the remainder distributed to the beneficiary’s siblings, per stirpes, upon the beneficiary’s death. Thus, decanting may eliminate the disabled beneficiary’s mandatory right to income, his or her right to principal upon reaching ages 30, 35, and 40, and his or her general power of appointment.[41] The result would be the same if the beneficiary were age 32 at the time of the decanting, although the principal distribution that was (or should have been) distributed to the beneficiary at age 30 is no longer part of the trust corpus subject to decanting.[42] What decanting under subsection (4) may not do, however, is change the remainder beneficiaries of the first trust; any assets remaining after death must be distributed to the disabled beneficiary’s siblings, per stirpes, as if the disabled beneficiary did not exercise the general power of appointment.

It cannot be assumed that decanting would further the settlor’s trust purposes. If the trust terms indicate that the settlor’s purpose in establishing the trust is inconsistent with what would be accomplished by decanting, then decanting may not be permissible. For example, suppose a settlor established a trust for her grandchild for the sole purpose of funding that grandchild’s college and post-graduate education. Even if the grandchild were a “beneficiary with a disability,” decanting to a supplemental needs trust would likely not be permissible because a supplemental needs trust would not further the apparent purpose of the first trust, which by all indications is solely to fund higher level education for this grandchild. If, however, instead of limiting distributions to college and post-graduate educational expenses, the first trust allowed distributions for all levels and types of education, then the trust could arguably be decanted to a supplemental needs trust with distribution provisions for vocational and occupational therapies, education, and training for the disabled grandchild.

In order to allow maximum flexibility in the administration of a trust, drafters might consider including specific language in the trust document describing the settlor’s purpose in establishing the trust. The longer a trust is anticipated to continue, the more useful this might prove to be, as memories fade, notes are lost, and circumstances change. Of course, more is not always better. In drafting, the more detailed that a purpose is expressly stated in the trust document, the less room there is to later argue that the settlor’s purpose might have been different or more expansive than the explicit language chosen by the drafter of the document. The lesson here is that the more words that are used, the more accurate they must be.


The changes to Florida’s trust decanting statute have been rather dramatic and comprehensive, bringing the state much more in line with the national trend to allow the possibility for an irrevocable trust to adapt and change when circumstances, usually but not always unforeseen, arise. In part II of this article, I discuss the logistics of decanting and offer some guidance on how decanting might impact the lives of trust beneficiaries, particularly those with special needs, beyond the four corners of the trust.


[1] See Fla. Stat. §§736.0410–.0417; see also In re Estate of Robinson, 720 So. 2d 540 (Fla. 4th DCA 1998); Bieley v. Bieley, 398 So. 2d 932 (Fla. 3d DCA 1981); Preston v. City Nat’l Bank of Miami, 294 So. 2d 11 (Fla. 3d DCA 1974); Pentland v. Pentland, 113 So. 2d 872 (Fla. 2d DCA 1959).

[2] Adapted from Abraham Maslow, The Psychology of Science 15 (1966).

[3] With the rather widespread adoption of the Uniform Trust Code, the distinction between modification and reformation has become less important, but it is helpful to remember this distinction when reading cases and commentary because the terms are often used interchangeably (even where not appropriately so). Reformation of a trust is a judicial action that seeks to fix errors in a trust, so that the reformed trust relates back in time to the creation of the trust. See Kathleen R. Sherby, It May Not Be Broken, But It May Need Fixing: Validity, Construction, Instruction, Reformation, Modification, and Termination Actions 15 (2015). In contrast, modification is rarely if ever retroactive. It is sometimes helpful to think of reformation as a narrow (and specifically defined) subset of trust modifications in general, but only in the sense that a reformed trust is actually a modified (or changed) trust.

[4] See Uniform Trust Decanting Act, prefatory note (2015); William R. Culp & Briani Bennett Mellen, Trust Decanting: An Overview and Introduction to Creative Planning Opportunities, 45 Real Prop. T. Est. Law J. 1, 3 (2010).

[5] See NY EPTL §10-6.6(b).

[6] States that have passed decanting statutes include Alaska; see Alaska Stat. §§13.36.157–.159; Arizona, see Ariz. Rev. Stat. §14.10819; Colorado, see Colo. Rev. Stat. §§15-16-901 through 15-16-930; Delaware, see 12 Del. Code §3528; Florida, see Fla. Stat. §736.04117; Illinois, see 760 Ill. Comp. Stat. 5/§16.4; Indiana, see Ind. Code 30-4-3-36; Kentucky, see Ky. Rev. Stat. §386.175; Michigan, see Mich. Comp. Laws §§556.115a, 700.7820a, 700.7103; Minnesota, see Min. Stat. §502.851; Missouri, see Mo. Rev. Stat. §456.4-419; Nevada, see Nev. Rev. Stat. §163.556; New Hampshire, see N.H. Rev. Stat. §564-B:4-418; New Mexico, see N.M. Stat. §46-12-101 through 46-12-129; New York, see N.Y. Est. Powers & Trusts §10-6.6(b)-(s); North Carolina, see N.C. Gen. Stat. 36C-8-816.1; Ohio, see Ohio Rev. Code §5808.18; Rhode Island, see R.I. Gen. Laws §18-4-31; South Carolina, see S.C. Code §62-7-816A; South Dakota, see S.D. Cod. Laws §§55-2-15 through 55-2-21; Tennessee, see Tenn. Code §35-15-816(b)(27); Texas, see Tex. Prop. Code §§112.071–.087; Virginia, see Va. Code §55-548.16:1; Washington, see S.B. 5012 (adoption Uniform Act); Wisconsin, see Wisc. Trust Code §701.0418; and Wyoming, see W.S. 4-10-816(a)(xxviii). Many of these have been adopted in the last few years. To the best of the author’s knowledge, none of the state statutes refer to the process as “decanting,” although the Uniform Trust Decanting Act does.

[7] See Fla. Stat. §736.04117(7)(a) (specifically distinguishing the power to invade principal from a general power of appointment).

[8] See Fla. Stat. §736.04117(1)(a) (2007).

[9] See Fla. Stat. §736.04117(1)(b) (2007).

[10] The Uniform Trust Decanting Act was completed by the Uniform Law Commission in 2015, and since then, it has been enacted in Alabama, California, Colorado, Illinois, Massachusetts, New Mexico, North Carolina, Virginia, and Washington. While §736.04117 is similar in many aspects to the Uniform Trust Decanting Act, Florida has not been recognized by the Uniform Law Commission as a state that has introduced or enacted the Uniform Trust Decanting Act in any form. Inquiry as to why that is the case has been made to the Uniform Law Commission, but no answer has been received to date. Most likely the commission’s failure to recognize Florida as a state that has enacted the uniform act is because there are sufficient differences between the two acts to distinguish them. In other words, it is more accurate to say that Florida’s decanting statute borrows significant concepts from the Uniform Trust Decanting Act, but falls short of wholesale adoption of it.

[11] See Fla. Stat. §736.04117(1)(b) (2018).

[12] This prevents the settlor from retaining a general power of appointment over the trust corpus, which would include the assets in the settlor’s gross estate for federal estate tax purposes.

[13] Any potential tax consequences for doing so should first be considered. While a settlor can generally retain the power to add co-trustees without causing the trust corpus to be included in the settlor’s estate for federal estate tax purposes, see Durst v. United States, 559 F.2d 910 (3d Cir. 1977), there may be a concern if this power is abused. See Steve R. Akers, Twenty-Five Things You Have to Know About Appointing Trustees, 17 Prob. & Prop. 36, 39 (July/Aug. 2003).

[14] See Fla. Stat. §736.04117(1)(b) (2018).

[15] See Fla. Stat. §736.04117(1)(b). Note that this is a narrower view than the Uniform Trust Decanting Act, which would allow decanting under certain circumstances by an authorized fiduciary (any fiduciary, not just a trustee) who has no discretion to make distributions or discretion over income only and not principal. See UTDA §13, Trust for Beneficiary with Disability, Uniform Trust Decanting Act. Thus, the UTDA has a potentially broader application than §736.04117(4).

[16] See Fla. Stat. §736.04117(2), (3), (4), (7)(c) (2018).

[17] See Fla. Stat. §736.04117(2)(a) (2018).

[18] See Fla. Stat. §736.04117(2)(a)1-2 (2018).

[19] A presently exercisable general power of appointment may not be omitted. See Fla. Stat. §736.04117(2)(b)2 (2018).

[20] See Fla. Stat. §736.04117(2)(b)4, (7)(b) (2018).

[21] See Fla. Stat. §736.04117(3)(a) (2018).

[22] Id.

[23] See Fla. Stat. §736.04117(1)(i) (2018). Note that the limitation on the power regarding distributions for the benefit of a beneficiary versus directly to a beneficiary is limited only to beneficiaries who are individuals.

[24] See Fla. Stat. §736.04117(1)(i)1-3 (2018).

[25] See Fla. Stat. §736.04117(3)(d)1 (2018); see also Fla. Stat. §736.04117(2) (2018) (vesting broader decanting powers in authorized trustees with absolute powers to invade).

[26] See Fla. Stat. §736.04117(3)(d)2 (2018).

[27] See Fla. Stat. §736.04117(4) (2018).

[28] From a state law perspective, this requirement alone should not preclude decanting transactions involving trusts with federally mandated Medicaid lien payback provisions, such as those established under 42 U.S.C. §1396(d)(4)(A) (commonly referred to as a “d4A trust”), because such payback provisions make the states that benefit from such provisions trust creditors, not trust beneficiaries. However, as discussed in part II of this article, decanting from d4A trusts may present difficulties with eligibility for Supplemental Security Income (SSI).

[29] See Fla. Stat. §736.04117(4) (2018).

[30] Fla. Stat. §736.04117(1)(c).

[31] This is consistent with the Uniform Trust Decanting Act. See UTDA §13.

[32] Fla. Stat. §736.04117(1)(e).

[33] Fla. Stat. §736.04117(1)(j).

[34] In Florida, an individual who receives at least $1 of SSI in any given month also qualifies for Medicaid insurance.

[35] See Fla. Stat. §736.04117(1)(e) (2018).

[36] See Fla. Stat. §736.04117(1)(j) (2018).

[37] See discussion below and in part II of this article.

[38] See Fla. Stat. §736.04117(4)(a)3 (2018).

[39] This is consistent with other trust legislation passed during the same legislative session, which placed priority on the settlor’s intent over a trust beneficiary’s interests. See H.B. 413 (amending Fla. Stat. §§736.0103(11),. 0105(2)(c),. 0404).

[40] This example is inspired by a similar example used in the comments on the Uniform Trust Decanting Act.

[41] Note that the prohibition against reducing a beneficiary’s vested interest is found in §736.04117(2)(a)2 (and somewhat more indirectly in §736.04117(3)(a)), but it is not a requirement or restriction of decanting to a supplemental needs trust under §736.04117(4).

[42] If for whatever reason the principal to which the beneficiary was entitled at age 30 had not yet been distributed to him outright and instead remained a part of the trust corpus, the second trust borne from any attempt to decant that portion of the trust corpus would likely be treated, for needs-based government benefits eligibility purposes, as a self-settled special needs trust created pursuant to 42 U.S.C. §1396p(d)(4)(A) because it had legally vested in the beneficiary.


Photo of Amy FanzlawAmy J. Fanzlaw is dual board certified by The Florida Bar in wills, trusts, and estates and in elder law. She currently chairs the Elder Law Certification Committee. Besides testifying as an expert witness on issues related to special needs trusts, Fanzlaw focuses her practice on special needs trust planning, estate and trust planning and administration, and long-term care planning.

This column is submitted on behalf of the Elder Law Section, Randy C. Brian, chair, and Heather B. Samuels and Genny Bernstein, editors.

Elder Law