The Comprehensive Guide to Probate, Trusts, Estate Planning, and Inheritance Litigation

What is a Constructive Trust?

A constructive trust is “a device used by equity to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs.” In Abdo v. Abdo, the Florida Second Court of Appeals identified the requirements to impose a constructive trust.  Although Abdo does not involve inheritance litigation, it is a great primer on constructive trusts, which are a common remedy sought in probate and trust litigation.

What is a Constructive Trust?

A constructive trust is an extraordinary remedy, not a cause of action.   Instead, a constructive trust is imposed based upon an established cause of action. One such cause of action is breach of fiduciary duty, often seen in probate and trust litigation. Another cause of action is tortious interference with the expectancy of inheritance.

What Purpose Does a Constructive Trust Serve?

A constructive trust serves two purposes:

  1. Restores property to the rightful owner.
  2. Prevents unjust enrichment.

As stated in Abdo:

It is ‘constructed’ by equity to prevent an unjust enrichment of one person at the expense of another as the result of fraud, undue influence, abuse of confidence or mistake in the transaction that originates the problem.

The Property Upon Which The  Trust Is Imposed Must Be Specifically Identified

In order to impose a constructive trust, the property upon which the trust is imposed must be specific and identifiable.  If an order imposing a constructive trust is too vague, and does not clearly identify the res upon which the trust attaches, the order is subject to reversal.

In Abdo, the court reversed the order imposing a constructive trust, stating:

Here, the constructive trust is overbroad as to the entities it attempts to enjoin, the assets it seeks to control, and the powers it grants to the trustee.

Therefore, it is imperative that the assets over which you seek a trust are specifically identified.

Constructive Trusts in Probate and Trust Litigation

Constructive trusts are a remedy often sought in probate and trust litigation. An evildoer will have assets in their possession that do not rightfully belong to them, perhaps as the result of undue influence or fraud, or by coercing a decedent to execute a will or trust in the evildoer’s favor. The victim can ask the court to impose a constructive trust over the assets wrongfully taken.

For example, if money or property has been removed from an account or a trust, then the victim can ask for the court to impose a constructive trust over the assets wrongfully removed.  Probate litigators will often turn to the remedy of the constructive trust to obtain justice for their clients.

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Broward County (Ft. Lauderdale)

Natasha M. Dalton

Pasco County (Port Richey)

Matthew Weidner

Sarasota County

Dawn Bates-Buchanan

Palm Beach County

Nicole Quattrocchi

Duval County (Jacksonville)

Long H. Duong

St. Lucie County

Romaine Brown

Orange County (Orlando)

Philip W. Gunthert

Marion County (Ocala)

Katina Pantazis

Pinellas County (Clearwater)

Matthew Weidner

Collier County (Naples)

Gregory J. Nussbickel

Miami

Niuris Bezanilla

Hillsborough County (Tampa)

R. Todd Burbine

Volusia County (Daytona)

Heather Caeners

Martin County (Stuart)

Jon L. Martin

Lee County (Ft. Myers)

Scott Kuhn

Sumter County (The Villages)

Matthew Weidner

Polk County (Lakeland)

Lesly Vaillancourt

Manatee County

Brice Zoecklein