Can a Trust Be Changed After a Spouse Dies?

1. What Happens to a Revocable Trust When One Spouse Dies?

When one spouse dies, the surviving spouse usually keeps running the trust as sole trustee, with no court order and no probate for anything the trust owns. Most Florida couples who sign a joint revocable living trust serve as co-trustees, and the document names the survivor to continue alone.

What changes is the character of the property. The deceased spouse can no longer change or cancel anything, so the deceased spouse’s share is fixed from the date of death. Depending on how the trust was written, that share either stays in the joint trust as a separately tracked portion, splits off into a new trust for the survivor or the children, or passes outright. Our guide to what happens to a trust when the grantor dies covers the notices and tax steps that follow a death.

A couple with separate trusts is simpler. Each spouse’s trust becomes irrevocable at that spouse’s death, and the survivor’s own trust stays fully revocable.

2. Does a Revocable Trust Become Irrevocable When One Spouse Dies?

Part of it does. Florida’s default rule for a trust created or funded by more than one person lets each spouse revoke or amend only the portion of the trust property that spouse contributed. At the first death, the deceased spouse’s contribution becomes irrevocable and the survivor’s contribution stays revocable by the survivor. The page on revoking or amending a trust sets out the rule.

Tracing who contributed what is where the work lies. A house bought with the husband’s savings before the marriage, an account the wife inherited, and a brokerage account both spouses funded from their paychecks each belong to a different portion. A trust that kept a schedule of each spouse’s contributions makes the division straightforward. A trust with one pooled account and no records can take an accountant and a negotiation to sort out.

The trust’s own terms can change the default. Some joint trusts say the whole trust becomes irrevocable at the first death, and a Florida appeals court enforced a clause of that kind, holding that a restatement one spouse signed alone did not change the joint trust, which became irrevocable when the other spouse died. Others give the survivor the power to amend everything. The document decides.

3. Can a Surviving Spouse Change a Revocable Trust?

A surviving spouse often can, within the limits the trust sets. Two Florida appeals decisions from the same court show how much the wording matters. In the first, a joint trust allowed amendments by the settlors during their lives in a writing signed by them, and the court held that the widow’s amendments after her husband’s death, removing a beneficiary, were invalid. In the second, a similar trust said amendments were to be made by the grantors, but it also contained a clause saying singular and plural words could be read interchangeably, and the court held that the surviving grantor could amend alone.

The method matters as much as the power. A trust that says an amendment must be in writing, signed and delivered to the trustee has to be followed substantially as written. For a Florida resident, an amendment that changes who inherits also has to be signed with two witnesses and the same formalities as a will. An amendment signed in front of a notary alone can fail even when the survivor had the power to make it. Our guide to trust amendments and restatements covers how to sign one.

4. Can an AB Trust Be Changed by the Surviving Spouse?

The B trust cannot. An AB trust divides at the first death into a survivor’s trust, the A trust, which the surviving spouse usually still controls, and a bypass or family trust, the B trust, funded with the deceased spouse’s share and irrevocable from that moment. Couples used the split for decades to use both spouses’ estate tax exemptions, and many older Florida trusts still require it even though portability now lets most couples keep the first spouse’s exemption without it.

The children gain rights in the B trust at the first death. The children are usually qualified beneficiaries, meaning they would receive the property if the trust ended now, so the trustee owes them a notice within 60 days that the trust exists and yearly accountings. A surviving spouse who is trustee of the B trust owes the children the same loyalty and impartiality as any trustee, and a Florida appeals court has held that even a survivor-trustee’s broad power to use principal has limits that protect the children. Our trust beneficiary rights guide covers what the children can ask for.

5. Can a Surviving Spouse Change an Irrevocable Trust?

A surviving spouse cannot change an irrevocable trust alone. An irrevocable trust, whether it became irrevocable at the first death or was irrevocable from the day it was signed, cannot be rewritten by the survivor simply because the survivor is a beneficiary or the trustee. Florida allows three narrower routes, each with its own conditions.

1. Agreement. After the settlor’s death, the trustee and all the qualified beneficiaries can agree to modify the trust, but the rule does not reach every trust, including many trusts written with a standard perpetuities clause, unless the trust expressly allows it.
2. Court order. A court can modify an irrevocable trust when its purposes have been fulfilled, when circumstances the settlor did not anticipate would defeat a material purpose, or when a material purpose no longer exists.
3. Decanting. A trustee with discretion to distribute principal can, in some cases, move the property into a new trust with updated terms, after written notice to the beneficiaries. Our trust decanting guide covers the limits.

Our irrevocable trust guide covers the trusts that are irrevocable from the start, such as a spousal lifetime access trust or a life insurance trust.

6. What Can the Surviving Spouse Still Do?

The surviving spouse keeps more control than many families expect.

• Change the survivor’s own share by an amendment signed with the formalities the trust and Florida law require.
• Use a power of appointment the trust gives the survivor over the deceased spouse’s share, which some trusts include so the survivor can adjust who inherits among the children.
• Disclaim, meaning refuse in writing, some or all of what the deceased spouse left, before accepting any of it. A disclaimer made within 9 months of the death generally avoids gift tax, and the property passes to whoever the trust names next.
• Resign as trustee of any share and let the named successor take over, if serving has become a burden.
• Claim the elective share, if the deceased spouse’s plan left the survivor less than Florida guarantees. The elective share is 30% of an estate that includes the deceased spouse’s revocable trust, and the deadline is short. Our elective share guide covers it.

A survivor serving as trustee can also sell trust property under the trust’s power of sale, as our guide on whether a trustee can sell the house explains, as long as the sale respects the rights of the beneficiaries of any irrevocable share.

7. What Happens to the House and the Taxes at the First Death?

A Florida homestead held in a joint trust usually stays in the trust with the survivor as trustee, because Florida allows a homestead to go to a surviving spouse when no minor child survives. If the trust sends any part of the homestead elsewhere while a spouse or minor child survives, Florida’s homestead rules can override the trust, as our guide to the homestead in a revocable trust explains.

For income tax, the deceased spouse’s share of the trust property receives a new basis at its date-of-death value, and the survivor’s share generally keeps its old basis until the survivor dies. A house the couple bought together for $200,000 and worth $600,000 at the first death usually takes a new basis of $400,000, half the old cost plus half the new value. Our step-up in basis guide walks through the math.

For estate tax, the survivor can keep the deceased spouse’s unused federal exemption by filing an estate tax return within 9 months of the death, or later under an IRS simplified procedure. Our portability guide covers the filing.

What Does It Cost?

Reviewing a joint trust after the first death, and restating the survivor’s share if the trust allows it, is a flat fee quoted at consult, because the work starts with reading a document someone else wrote. A Complete Trust Plan for a couple, with a joint trust written to say exactly what the survivor may change, is a flat fee from $4,500, and $3,200 for one person. Administering the deceased spouse’s share, including the notices and accountings, is a flat fee quoted at consult. Recording and other government costs are additional and passed through at cost. Advertised fees are honored for 90 days from the posted date. Challenging or defending an amendment is litigation, which we quote per matter.

Frequently Asked Questions

Common Situations

The widow who wants to add a grandchild. A couple’s joint trust gives each spouse the power to amend that spouse’s own share. After her husband dies, the widow wants to leave something to a new grandchild. She signs an amendment with two witnesses and a notary that changes only her share, and her husband’s share passes as he wrote it.

The second marriage and the B trust. A husband’s share splits into a family trust at his death, paying his second wife income for life and then going to his children from his first marriage. She is the trustee, and she sends his children the 60-day notice and an accounting every year, and she cannot change who receives the family trust when she dies.

Sources of Law

• Fla. Stat. §736.0602(1),(2)(b),(c),(3) (revocation or amendment; each settlor as to that settlor’s contribution; method); §736.0403 (annotated)(2)(b) (testamentary aspects need will formalities); §736.0103 (annotated)(19) (qualified beneficiary); §736.0813 (annotated)(1)(b),(d) (60-day notice when a trust becomes irrevocable; annual accountings).
• Fla. Stat. §736.0412 (annotated)(1),(4) (nonjudicial modification after the settlor’s death and its exclusions); §736.04113 (annotated)(1) (judicial modification); §736.04117 (annotated) (decanting).
• Fla. Stat. §§739.402, 739.501 (disclaimers; when barred; tax-qualified disclaimers); 26 U.S.C. §2518(b) (9 months); Fla. Stat. §§732.201, 732.2035(5), 732.2065, 732.2135 (elective share, including revocable trust property, and its deadline); Art. X, §4(c), Fla. Const., and §732.4015 (devise of homestead).
• 26 U.S.C. §1014 (basis of property acquired from a decedent); 26 U.S.C. §2010(c) (portability of the unused exclusion). Tax information, not tax advice.
• L’Argent v. Barnett Bank, N.A., 730 So. 2d 395 (Fla. 2d DCA 1999) (amendment power limited to the settlors’ joint lives); Roberts v. Sarros, 920 So. 2d 193 (Fla. 2d DCA 2006) (surviving grantor could amend where the trust read singular and plural interchangeably); Rollins v. Alvarez, 792 So. 2d 695 (Fla. 5th DCA 2001) (trust irrevocable at the first death); Rachins v. Minassian, 251 So. 3d 919 (Fla. 4th DCA 2018) (children as qualified beneficiaries of the survivor’s continuing trust; implied limits on a survivor-trustee’s invasion power). Paraphrased, not quoted.
• Case retold below: Provost v. Justin, 19 So. 3d 333 (Fla. 2d DCA 2009). Opinion read in full; retrieved September 30, 2026.

The Amendment Signed Seven Years After the Husband Died

Many cases like this keep coming up with the same second signature missing, and one of them is short enough to tell in full.

In 1989 a husband and wife set up a trust together, naming his three children as the beneficiaries. He died in 1994. Seven years later, in 2001, she signed an amendment leaving the first $10,000 to a woman she had once raised as a foster child and everything else to her caregiver. She died in 2005, and her husband’s children sued to set the amendment aside. The trial court ruled for the caregiver and the foster child. The appeals court reversed. Reading the trust as a whole, it held that the power to amend belonged to the two grantors while they were living, so any amendment needed both signatures, and a document her husband never signed could not change the trust.

My reading of that case is that both sides of this family had understandable goals. She wanted to thank the people who cared for her in her last years, and his children expected the trust their father signed to hold. In reviewing the Florida cases on joint trusts after the first death, I have a few take-home points.

The first is to decide the survivor’s power while both spouses are alive. A couple can give the survivor full power over everything, power over the survivor’s own share only, or no power at all, and each is a reasonable choice for a different family. Avoid leaving the question to a clause that only says the grantors may amend, because Florida courts have read nearly identical wording both ways.

The second is the second marriage. Where each spouse has children from before, a clause freezing the first spouse’s share at death protects those children, and a separate share the survivor controls protects the survivor’s freedom to thank a caregiver or add a grandchild.

The third is the survivor’s own planning. A widow who wants to leave money to someone new can usually do it through her own share or her own new trust, if the joint trust was drafted to allow it.

An owner can make that choice explicit at the drafting stage, and every joint Complete Trust Plan I prepare, flat fee from $4,500 for a couple, states in one sentence what the survivor may and may not change. One limit is worth stating. The opinion is two paragraphs long and does not quote the whole trust or say what the trust was worth, so it does not tell us how much the caregiver lost.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The case described above is a decision of a Florida court rather than a matter handled by this firm. Past results do not guarantee a similar outcome.

Updated on September 30, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law, not legal advice, and no attorney-client relationship is created. Do not send confidential information until we have agreed to represent you.