We’re living through the largest inter-generational wealth transfer in history. Much of that wealth will end up in someone’s trust. Not surprisingly, the jurisdictional competition among U.S. states to capture as much of that trust business as possible is fierce.
What this means for Florida trusts and estates attorneys is that sooner or later you’re going to be involved in some kind of case involving a non-Florida trustee. It’s not a matter of if, but when.
And when that happens, the first question you’ll want to ask yourself is whether the non-Florida trustee can be sued in Florida. To answer that question you’ll need to first figure out if there’s a statutory basis for long-arm jurisdiction under F.S. 736.0202, Florida’s trust-specific long-arm statute. This is a relatively new statute first adopted on 2013.
Trap for the unwary
But just because a Florida statute says you can drag a non-Florida trustee into a Florida courtroom doesn’t make it so. And that’s a trap for the unwary. Why?
Because the statute doesn’t tell you that it doesn’t apply if the statutory basis for long-arm jurisdiction conflicts with the non-statutory “minimum contacts” test developed by our appellate courts. This is a classic example of the kind of “unknown unknown” that keeps lawyers up at night. You might be in the middle of one of these cases and not know you don’t know there’s a minimum-contacts issue underlying your entire case.
There are precious few court opinions trusts and estates practitioners can look to for guidance in these non-Florida trustee cases (here’s one prior example). That’s why the Dunham opinion is so important. If you’re a Florida trusts and estates attorney, it’s a must read.
Case Study
Dunham Trust Company v. Surrey, 2026 — So.3d —-, 2026 WL 1154328 (Fla. 4th DCA April 29, 2026)
This case involves a Nevada corporate trustee (DTC) that took over as successor trustee of a trust created by a Florida resident. This fact alone is was sufficient to drag the Nevada trustee into a Florida courtroom under F.S. 736.0202, which tells us that a non-Florida trustee submit itself “to the jurisdiction of the courts of this state [if it serves] as trustee of a trust created by a settlor who was a resident of this state at the time of creation of the trust.”
But is that the end of the story? Nope. Why? Because a non-Florida trustee can’t be sued in Florida unless the non-statutory “minimum contacts” test is also satisfied. So saith the 4th DCA:
Determining whether a Florida court can exercise personal jurisdiction over a nonresident defendant involves a two-step analysis: (1) whether the complaint sufficiently alleges a statutory basis for the exercise of jurisdiction, and (2) whether the defendant has sufficient minimum contacts with the state to allow the court to exercise jurisdiction consistent with due process requirements. Id. (citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989)).
In this case the Nevada corporate trustee (DTC) conceded there was a statutory basis for dragging it into a Florida courtroom, and that was enough for the trial court to deny its motion to dismiss. But was that enough on appeal? Nope. Here’s why:
DTC is not subject to personal jurisdiction in Florida because it did not purposefully avail itself of the privilege of conducting business in Florida. Although DTC agreed to serve as co-trustee of a trust created by a Florida resident, DTC was not a party to the trust instrument when it was executed in Florida, and no evidence indicates that DTC solicited the appointment as co-trustee or otherwise intentionally sought to create a relationship with Florida. DTC merely accepted the appointment and assumed its predecessor’s duties. See Hoag v. French, 238 Ariz. 118, 357 P.3d 153, 158 (Ariz. Ct. App. 2015) (holding that a Bahamian corporation did not purposefully avail itself of conducting business in Arizona by accepting an appointment as successor trustee of a trust created by an Arizona resident); see also Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284, 292 (1st Cir. 1999) (stating that, to establish purposeful availment, “it is not enough to prove that a defendant agreed to act as the trustee of a trust that benefitted a resident of the forum state”; instead, the defendant must have “actually reached out to the [forum state] to create a relationship”) (emphasis in original).
But this was a “Florida” trust governed by Florida law, shouldn’t that have been enough to put DTC on notice that it could be sued in Florida? Again, no. As explained by the 4th DCA:
We also note that the choice-of-law provision would not have caused DTC to reasonably foresee being sued in Florida for claims related to its administration of the trust, which Ruth did not dispute occurred in Nevada. The choice-of-law provision applies only to the “validity and interpretation” of the trust instrument; the provision does not specify where the trust must be administered nor require the administration to be governed by any particular law. See generally Silver v. Horneck, 466 Ill.Dec. 137, 216 N.E.3d 970, 979-81 (Ill. App. Ct. 2021) (holding that a provision in a trust document stating that the “validity and effect” of the trust would be governed by Illinois law did not constitute a designation of Illinois as the principal place of administration for the purpose of applying the Illinois long-arm statute).
What’s the take away?
In cases involving non-Florida trustees, knowing there’s a non-statutory “minimum contacts” issue looming out there is an important first step, but it’s not the end of the story. You’ll also need to understand that predicting in advance with any degree of certainty how a court is going to decide this thorny jurisdictional issue is a daunting task, given the decades of sometimes conflicting court precedents floating around out there. See here for an excellent historical summary of the U.S. Supreme Court’s evolving standards for determining a defendant’s minimum contacts. Here’s an excerpt:
Although the Supreme Court has decided only a few cases that explore the scope of general personal jurisdiction since its opinion in International Shoe, leaving the bulk of such determinations to lower federal and state courts, it has decided several cases elaborating on the quality and nature of the defendant’s contacts with the forum and litigation necessary for a court’s exercise of specific jurisdiction over the defendant.9 A common theme throughout many of these decisions is that “unilateral activity” in the forum state by a person who has some family, business, or other relationship with a nonresident defendant will not suffice to establish a defendant’s minimum contacts with the forum.10 In other words, jurisdiction is not proper merely because the defendant could have foreseen that a third party with which it has a family or business relationship (e.g., a defendant’s family member or customer of a defendant corporation) would have contacts with the forum.11 Rather, the defendant must “purposefully avail” itself “of the privilege of conducting activities within the forum State,” thus invoking the benefits and protections of its laws.12 The defendant must have reasonably anticipated being haled into court there—a standard that potentially allows a defendant to predict where it will be subject to suit and plan the geographic scope of its activities or insure against the risk of being sued in a distant forum accordingly.13 The Court has also emphasized that the minimum contacts inquiry should not focus on the location of the resulting injury to the plaintiff; instead, the proper question is whether the defendant’s conduct connects him to the forum in a meaningful way.14
We now have at least two examples of court rulings coming to opposite conclusions on a non-Florida trustee’s minimum contacts with Florida. The Abromats federal trial-court ruling (which ruled the non-Florida trustee could be sued in Florida) and the Dunham opinion from the 4th DCA discussed above (which ruled the non-Florida trustee could not be sued in Florida). Two real world examples are helpful, but far from definitive. When confronted with this issue, honestly counseling our clients on the lack of predictably inherent to a fundamentally subjective legal standard may be the best we can do as attorneys. Forewarned is forearmed.