USA – FLORIDA Trends and Developments Contributed by: Rebecca G. DiStefano, Jeannie Regidor and Marina Olman-Pal, Greenberg Traurig, P.A.
Article 12 strengthens secured creditors’ protection in digital asset collateral and is intended to reduce transaction costs while providing protections for mar- ket participants. The Article 12 additions, signed into Florida law on 23 May 2025, are titled the Uniform Commercial Code – Controllable Electronic Records. For practitioners, navigating Article 12 comes down to four points. The chapter creates a new asset class, the controllable electronic record, that finally houses cryptocurrencies in self-custody, NFTs and tokenised payment rights without forcing them through the awkward “general intangibles” category in Article 9, wherein secured parties were subject to outstanding pre-existing claims. Now, a secured party may perfect a security interest either by filing a financing state- ment under Article 9 (Section 679.3101, F.S.) or by obtaining control of the CER under Section 669.105, F.S., which serves as the digital equivalent of physical possession of such CER, and means that the holder has the practical ability to enjoy the CER’s benefits, the exclusive ability to prevent others from doing so, and the exclusive ability to transfer. Perfection by control is superior to perfection by filing of a UCC-1 financing statement: once the statutory adjustment date passes (one year after the 1 July 2025 effective date, with Sections 669.701–669.706, F.S., grandfathering pre-existing priorities), a later-arriving secured party that takes control over the CER has non-temporal perfection priority over an earlier filer who only filed. Furthermore, a “qualifying purchaser” – a person who acquires control for value, in good faith and without notice – takes the CER free of com- peting property claims, putting CERs on roughly the same footing as negotiable instruments under long- standing bona fide purchaser principles. Importantly, Section 669.104 (8) makes it clear that a filed financing statement does not constitute notice of a claim of a property right in a CER.
For lenders accepting digital-asset collateral in Florida, the practical instruction is to obtain control through a custodial-acknowledgment agreement with a regulated exchange, a multi-signature wallet, or direct possession of the private key, and to file a financing statement as a backup. A final piece of the picture pre-dates the 2025–2026 legislative wave but has gained renewed importance: the Florida Fiduciary Access to Digital Assets Act, codified at Chapter 740, F.S., and modelled on the Revised Uniform Fiduciary Access to Digital Assets Act. The chapter authorises personal representatives, guardians, agents under a power of attorney, and trus- tees to access, control or copy a user’s digital assets, subject to a three-tier hierarchy: the user’s directions through the custodian’s online tool come first, the user’s estate-planning documents come second, and the custodian’s terms-of-service agreement governs only as a default. Chapter 740 matters for blockchain practice on two fronts. Smart contracts and the assets they administer – tokenised claims, on-chain agreements and custo- dial wallet holdings – fit within the chapter’s broad definition of “digital asset”, and the Act has been the principal vehicle that Florida practitioners cite when drafting cryptocurrency provisions with respect to traditional estate plans. When an estate plan directs a trustee to administer cryptocurrency or to interact with an on-chain agreement on behalf of a beneficiary, Chapter 740 is what supplies the lawful authority (rec- ognising such trustee or fiduciary as an “authorised user”) to do so without exposure under the Florida Computer Crimes Act (Chapter 815, F.S.) or the fed- eral Stored Communications and Computer Fraud and Abuse Acts.
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