Introduction 

While assigning litigation rights to a revocable living trust offers strategic benefits, Florida clients should be aware of the associated risks. At Lumsden Law, we help you make informed decisions to protect your rights and minimize potential downsides. 
Let’s explore some of the critical risks and considerations involved in this estate planning strategy. 

The Trustee Becomes the Real Party in Interest 

When litigation rights are assigned to a trust, the trustee—not the settlor—holds the legal authority to manage the case. 

• Complications: If the trustee is inexperienced or unclear about their authority, it could slow down or weaken your litigation strategy (Roller v. Collins, 373 So. 3d 35). 

• Solution: Careful trustee selection and clear instructions in the trust documents are essential. 

Revocability Brings Instability 

Florida law allows a settlor to revoke or amend a revocable living trust at any time (§ 736.0602). 

• Potential Issue: Frequent changes can create uncertainty during ongoing litigation. 

• Court Confusion: Courts and opposing counsel may challenge your standing if litigation rights are inconsistently managed. 

Cases like Bernal v. Marin (196 So. 3d 432) and Schlossberg v. Estate of Kaporovsky (303 So. 3d 982) highlight how revocability can complicate lawsuits. 

No Creditor Protection 

Under Florida law, assets in a revocable living trust are still considered owned by the settlor. 

• Risk: Creditors can reach trust assets to satisfy judgments or debts (§ 600.03 Pros and Cons). 

• Important Note: Assigning litigation rights to a trust does not shield those rights from creditor claims. 

Potential Trustee Liability 

Trustees managing litigation rights might face personal liability if something goes wrong (§ 736.1015). 

• Mismanagement Risks: If the trustee mishandles the case or fails to follow fiduciary duties, they could be personally sued. 

• Protection: Trustees should carry insurance and understand the legal obligations tied to litigation management. 

Beneficiary Disputes 

Florida law requires trustees to notify qualified beneficiaries about the trust’s existence and their rights. 

• Problem: Beneficiaries may challenge the management of litigation rights or the outcome of a case. 

• Real-World Example: In Darian v. Weymouth (76 So. 3d 15), disputes over trust administration led to costly litigation. 

Properly drafted trust documents and clear communication are essential to minimize future disputes. 

How Lumsden Law Protects Your Interests 

At Lumsden Law, we recognize that while revocable trusts offer flexibility, they must be used strategically when litigation rights are involved. 
We help clients: 

• Draft clear, protective trust terms. 

• Select and educate the right trustee. 

• Understand and mitigate risks to protect litigation outcomes. 

Conclusion 

Assigning litigation rights to a revocable living trust in Florida offers flexibility but comes with real risks—creditor exposure, trustee liability, and beneficiary disputes among them. 
Before making any decisions, consult with the experienced attorneys at Lumsden Law to safeguard your case and your estate. 

Call to Action: 

Schedule a consultation with Lumsden Law today to ensure your litigation rights and estate plans are properly protected under Florida law.