Does a Prenup Protect Your Trust Inheritance in Florida?

1. Is Your Interest in a Family Trust Marital Property?

People ask me whether a spouse can take half of a parent’s trust in a divorce, and the honest answer is usually not, at the start. Florida treats property received by gift, bequest or inheritance from someone other than your spouse as nonmarital, and a beneficial interest in a trust your parents or grandparents created is that kind of property. Income from separate property is separate too, unless the couple treated it, used it or relied on it as marital money.

The trust itself also sits outside the marriage in a practical sense. The trustee holds title to the assets, and a divorce court divides what the spouses own. A beneficiary who has only a right to receive distributions does not own the trust account, so there is nothing in it for the court to divide.

Two situations change that picture. Where marital effort or marital money increases the value of a separate asset (a spouse who manages the family rental buildings for years, for example), the increase can be marital. And where the trust has already paid money out, the protection depends on what happened to the money next. A prenup handles both.

An outright inheritance follows the same divorce rules, explained on whether an inheritance is marital property. Trusts the couple created for themselves are covered on what happens to a trust in a divorce.

2. Distributions and Commingling

Commingling means mixing separate money with marital money until nobody can trace which is which. Trust distributions are the most common way family money becomes marital, because each one arrives as a check or a transfer that has to land somewhere.

• A joint account. A distribution deposited into an account in both names, then spent on household bills alongside paychecks, is hard to trace back out.
• A house titled in both names. Florida presumes that real estate and personal property held by spouses as tenants by the entireties (the form of joint ownership married couples use) is marital, and the spouse claiming otherwise has to prove it. Using a $400,000 distribution as the down payment on a home deeded to both spouses usually makes the down payment marital.
• A separate home lived in as the family home. A house bought only in your name, or in the trust’s name, can still be argued to be a gift to the marriage when the family lives in it and treats it as joint. The story at the bottom of this page is that argument, decided against the husband.

Since 2024, Florida law says a gift of real estate between spouses requires a written deed that meets Florida’s formalities. A deed into both names is such a writing. The new rule makes the paperwork on a home bought with trust money matter more than ever, and a prenup should say expressly which way the couple wants it.

The simplest protection is a separate account in your name alone that receives every distribution, with a clear record of anything you move out of it for the household. See how to protect assets in a divorce.

3. A Spendthrift or Discretionary Trust Versus an Outright Inheritance

How your parents hold the money decides how much the prenup has to do. The same $1,000,000 looks very different in three forms.

1. Outright. The money is yours the day it is paid. Florida treats it as separate in a divorce, and you have to keep it separate yourself. At death it is part of your estate, and a spouse who did not waive the elective share can claim 30 percent of the elective estate, inheritance included.
2. A spendthrift trust with required payments. A spendthrift clause stops you from pledging your interest and stops your creditors from reaching it before it is paid to you. Florida makes an exception for a spouse or former spouse with a court order for support. The spouse or former spouse can ask a court, as a last resort, to attach the payments the trust is required to make.
3. A discretionary trust. Where every distribution is up to the trustee, no creditor can force the trustee to pay, and Florida says that includes a spouse or former spouse with a support order. The money reaches anyone only when the trustee actually pays it out.

A discretionary trust held for a child’s lifetime, with an independent trustee, is the strongest of the three, and it protects the child without asking the future spouse to sign anything. A lifetime trust is the parents’ tool rather than the couple’s, and it is covered on a parents’ guide to a child’s prenup. See also Florida spendthrift trusts and protecting a child’s inheritance.

4. What a Prenup Should Say About Trust Interests

A prenup for a trust beneficiary should deal with the trust by name. I look for six provisions.

1. Disclosure. The trust interest is listed on the financial schedule, with the trust’s name, the trustee, and a value or a fair description where the value is uncertain. A known trust interest left off the schedule gives the other spouse an argument against the whole agreement in a divorce.
2. The interest itself. Every present and future interest in the named trusts, and in any trust a parent or grandparent creates later, is separate property.
3. Distributions and what they buy. Every distribution, and every asset bought with one or traceable to one, stays separate, including income and growth.
4. The house. The agreement says whether a home bought with trust money is separate even if the family lives in it, and what happens if the couple decides to title it jointly. The house clause is the one easiest to leave out, and the case below shows why it matters.
5. Effort during the marriage. Any increase in value from either spouse’s work on trust-related assets, such as managing the family’s buildings or business, stays with the beneficiary, or is compensated by a stated formula.
6. Death. The spouse waives the elective share, homestead and the other rights at death, signed before two witnesses, so that distributions already received pass under the beneficiary’s own will or trust.

An agreement can also do the opposite on purpose. Some couples want trust income to support the household and be shared, and a clause that says so is better than leaving it to argument.

5. The Trust Interest at Death

A trust created by your parents usually says what happens to your share when you die, often that it passes to your children or your siblings. The trust assets were never yours outright, so they skip your probate estate and your spouse has no elective share in them.

Distributions you already received are a different matter. Money in your own accounts, a house you bought with a distribution, and investments funded from the trust are part of your estate at death. Unless the prenup waived it, your spouse can claim 30 percent of the elective estate, which counts those assets. If you have received $800,000 over the years, that is $240,000 your spouse can claim from the people your will names.

Two documents close the gap. The prenup waives the elective share and the other spousal rights, and your own will or trust leaves the distributions where you want them. See does a prenup apply at death and the Florida elective share.

What It Costs

A prenup drafted for one spouse is a flat fee from $2,450, a postnup for a couple already married is a flat fee from $2,950, and a review of an agreement the other side drafted is a flat fee from $750. What each prenup fee includes is set out on the prenup page.

For parents who want the trust itself to protect a child, the Protected Trust Plan holds each child’s share in a lifetime trust and is a flat fee from $4,700 for an individual. Posted fees are honored for at least 90 days from September 2026. Government costs such as recording and filing fees are additional and passed through at cost.

Frequently Asked Questions

Common Situations

The quarterly distributions. A woman receives $60,000 a year from her grandfather’s trust and, after the wedding, has it deposited into the couple’s joint checking account, where it pays the mortgage and school tuition. Ten years later, in a divorce, the money is gone into the household and nothing is left to trace. A prenup saying the couple chose to share the income, or a separate account, would have made the answer clear either way.

The down payment. A man uses a $500,000 trust distribution for the down payment on the couple’s first home and titles it in both names because the lender’s paperwork made it easy. Florida presumes the home is marital, and the burden of proving otherwise is his. His prenup said distributions stay separate and said nothing about property bought with them.

The beneficiary who is also the trustee’s son. A son is a beneficiary of his late mother’s trust, and his father is trustee. The son’s fiancée asks for the trust documents during the prenup negotiation. The son can usually disclose his interest and a fair description of its value without handing over the whole trust instrument, and the agreement can record that she accepted that disclosure.

Sources of Law

• Fla. Stat. §61.075(6)(a)1.b. (enhancement in value and appreciation of nonmarital assets from either party’s efforts or from marital funds is marital); (6)(a)1.d. (an interspousal gift of real property may not be made in the absence of a writing that complies with §689.01; added by ch. 2024-237); (6)(a)2. and 3. (real and personal property held as tenants by the entireties presumed marital, burden on the party claiming otherwise); (6)(b)2. (assets acquired separately by noninterspousal gift, bequest, devise or descent are nonmarital); (6)(b)3. (income from nonmarital assets is nonmarital unless treated, used or relied upon as a marital asset); (6)(b)4. (assets excluded by valid written agreement); (6)(b)6.
• Fla. Stat. §736.0502 (annotated)(3) (beneficiary’s creditor may not reach a spendthrift interest or a distribution before receipt); §736.0503 (annotated)(2)(a) and (3) (spendthrift provision unenforceable against a beneficiary’s child, spouse or former spouse with a judgment or order for support or maintenance, who may obtain an order attaching present or future distributions only as a last resort); §736.0504 (annotated)(2) (whether or not the trust has a spendthrift provision, no creditor of the beneficiary, including a §736.0503(2) claimant, may compel a discretionary distribution or reach the discretionary interest).
• Fla. Stat. §61.079(4)(a)1. and 3.; §732.2035 and §732.2065 (elective estate; 30 percent); §732.702(1) (waiver of spousal rights before two subscribing witnesses).
• Hooker v. Hooker, 220 So. 3d 397 (Fla. 2017) (in a marriage governed by an undisputed prenuptial agreement keeping premarital assets and their appreciation separate, the trial court’s findings that two residences bought with the husband’s nonmarital funds and titled to his family trust, his company or himself were interspousal gifts must be reviewed for competent, substantial evidence; the Fourth District’s contrary ruling on the Wellington property, 174 So. 3d 507, quashed and the trial court’s amended final judgment reinstated). Opinion read in full. The case predates the 2024 writing requirement for interspousal gifts of real property.
• Statutes and opinions retrieved October 6, 2026.

The Horse Farm Bought in the Family Trust’s Name

From what I have seen, the failure is rarely the trust and rarely the prenup. The failure is what the family does with the money once it leaves the trust, and a Florida Supreme Court case from 2017 shows it as clearly as any I have come across.

A couple married in New York in 1987 and moved to Florida two years later. Both came from family money, and they signed a prenup before the wedding that kept each person’s premarital assets, and the growth on them, separate. The couple kept separate bank accounts for the whole marriage and shared only a household checking account he funded.

In 1989 he bought a parcel of vacant land in Wellington. Her father had recommended it as an investment, and the deed named a family trust held for his benefit as the owner. Over twenty years the land became a working horse farm with sixteen stalls, and the family lived in the apartment above the stables. In 1997 he moved the farm into a company he formed, and she signed the deed with him. The same year he bought a summer place at Lake George, New York, for about $490,000, titled in his name alone.

The wife filed for divorce in 2010, when she learned he did not intend to share the money from selling the farm, and the farm sold for $4.5 million just afterward. The trial judge found that, prenup or not, both homes had been given to the marriage, writing that “the Husband and Wife treated their residential properties as marital assets.” The wife received 34 percent of the farm and 25 percent of Lake George, by then worth about $2.5 million. The appeals court took away her share of the farm, and the Florida Supreme Court put it back in 2017.

I have a few take-home points.

The first is that the couple did nearly everything right on paper. The couple had a prenup, the property was bought with his own money and titled to his family trust, and their finances stayed apart for twenty-three years. What decided the case was how they lived in the house, and the prenup said nothing specific about a family home bought with separate money.

The second is that her signature on the 1997 deed counted against him. A spouse is often asked to sign a deed for a lender or a title company, and in this case the court treated that signature as evidence that the property had been shared.

Practice pointer. If the family home will be bought with trust or inherited money, the prenup should say in its own clause that the home stays separate even though the family lives in it, and every later deed should be checked against that clause.

Avoid relying on a general separate-property clause to protect the house. General language protected the investments in this marriage and did not protect the homes.

An honest limit belongs here. The Supreme Court decided how appellate courts review a finding of a gift, and it did not announce a new rule about prenups. Florida also changed its statute in 2024 to require a written instrument for a gift of real estate between spouses, and whether that rule would change the result on facts like these has not been decided.

Kevin D. Klagge, Esq., admitted in Florida since 2012. The case above is a published opinion in other parties’ matter, not a matter this firm handled, and it predicts nothing about yours.

Updated on October 6, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. 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.