Florida QTIP Trust

Why Does a Second Marriage Need a QTIP Trust?

A spouse who inherits everything outright owns it, and can leave it by will to anyone, including their own children or a later spouse. If you leave everything to your children instead, your spouse may not have enough to live on. A QTIP trust pays your spouse for life and then passes what remains to the people you named, usually your children from your first marriage. Neither side has to rely on the other’s goodwill.

Florida adds two rules that shape the plan. A surviving spouse can claim 30% of the elective estate no matter what the will says, and a Florida homestead cannot be left away from a surviving spouse unless the spouse signed a waiver. A QTIP trust has to be built around both rules, and the sections below explain how.

How Does a QTIP Trust Work?

QTIP stands for qualified terminable interest property. The name describes the tax treatment, and the structure itself has five parts.

• You leave assets to the QTIP trust at your death, rather than to your spouse directly.
• Your surviving spouse receives all of the income for life, paid at least once a year, and the trustee can also pay principal to your spouse for health and support.
• While your spouse is alive, nobody except your spouse may receive principal. A power to pay a child during that time disqualifies the trust for the marital deduction.
• Your spouse cannot change who inherits the remainder.
• At your spouse’s death, what remains passes to the beneficiaries you named, typically your children.

The income has to last for your spouse’s whole life. A clause that ends the income if your spouse remarries disqualifies the trust for the marital deduction, which surprises clients who planned to include one.

A trustee you name manages the investments and decides requests for principal. In a blended family the trustee’s investment choices matter, because assets that pay income favor your spouse and assets that grow favor your children.

Practice pointer. Name a trustee both sides can work with, such as a trust company or co-trustees drawn from each side of the family. A child of the first marriage serving alone decides every principal request from a stepparent, and both of them know it.

How Does a QTIP Trust Defer Federal Estate Tax?

Property in a QTIP trust qualifies for the unlimited marital deduction, so no federal estate tax is due on it at the first spouse’s death. The trust property is then counted in the surviving spouse’s estate at the second death, and any tax is paid then. The top federal rate is 40%, and the 2026 exemption is $15 million per person, so most Florida families owe no federal estate tax either way. Florida has no estate tax of its own. See Florida and estate tax.

The deduction is not automatic. The personal representative makes the QTIP election on Form 706, the federal estate tax return, which is due 9 months after death with an automatic 6-month extension available. The election can cover the whole trust or a fraction of it, and once made it is irrevocable. Our guide to filing Form 706 covers the return itself.

Counting the trust in the surviving spouse’s estate also produces a second step-up in basis. The children’s cost basis resets to the value at the second death, so growth during your spouse’s lifetime is not taxed as capital gain when they sell.

Does a QTIP Trust Count Toward Florida’s Elective Share?

A surviving spouse in Florida can take 30% of the elective estate regardless of the will, and the elective estate includes trusts, joint accounts and other property outside probate. A QTIP trust for the spouse counts toward that 30%, so a trust drafted with the claim in mind can satisfy the elective share rather than sit on top of it.

Florida values the spouse’s trust interest by what the trust allows. A trust that pays all of the income at least once a year, lets the spouse require unproductive property to be made productive, and pays no one else during the spouse’s life counts at 50% of its value. Adding a trustee power to pay principal for the spouse’s health, support and maintenance raises the credit to 80%. The credit reaches 100% only if the spouse also holds a general power of appointment, which would let the spouse redirect the remainder and defeats the purpose of a QTIP trust in a blended family.

On a $1,000,000 elective estate, the elective share is $300,000. Counted on its own, a trust credited at 80% needs $375,000 of principal to cover the claim, and a trust credited at 50% needs $600,000. A spouse can also waive the elective share in a prenuptial or postnuptial agreement, which is often the simpler route when both spouses have their own money.

Practice pointer. Include the health and support power unless there is a reason to leave it out. The power moves the trust from 50% to 80% credit against the elective share, and it costs the children nothing unless the trustee uses it.

When Is a QTIP Trust Worth It?

A QTIP trust fits a second marriage where one or both spouses have children from before. For a first marriage with shared children, the same trust is usually more structure than the family needs, and a revocable trust or an outright gift to the spouse does the job for less.

The home follows its own rules. A Florida homestead cannot be left in a will or trust away from a surviving spouse unless the spouse signed a valid waiver, so without one your spouse takes a life estate in the home or elects a one-half share, whatever the QTIP trust says. A prenuptial agreement with a homestead waiver lets the house pass under the trust like everything else. The Florida homestead rules explain the spouse’s protection in full.

I weigh the QTIP trust against those simpler options at the consult and recommend the one your family needs. The fee is a flat fee quoted at the consult, before any work starts.

Frequently Asked Questions

Common Situations

The second marriage with children from the first. A man remarries at 68. He wants his wife supported for life, and he wants his savings and investments to go to his two children from his first marriage when she dies. A QTIP trust pays her the income for life, with principal for her health if she needs it, and the remainder goes to his children.

The widow worried about her husband’s children. A woman in her second marriage worries that if she leaves everything to her husband, his children will inherit instead of hers. A QTIP trust supports him for life and then passes the remainder to her children.

The estate above the exemption. A retired executive in his second marriage has an estate of $22 million, which is $7 million above the 2026 exemption of $15 million. His plan leaves that $7 million to a QTIP trust, so no federal estate tax is due at his death. His wife is supported for life, his children from his first marriage receive the remainder, and the tax is postponed to her death. The deferral depends on the personal representative making the election on Form 706.

Sources of Law

• IRC §2056(b)(7) (qualified terminable interest property, the qualifying income interest for life, and the QTIP election on Form 706, irrevocable once made); Treas. Reg. §20.2056(b)-7(b)(2) (an election over all or a fractional share of the property), (b)(4) (the election made on the return), (d)(3) (an income interest that ends on remarriage does not qualify) and (d)(6) (a power to distribute principal to the spouse does not disqualify the trust). (retrieved 2026-06-08)
• IRC §2044 (QTIP property included in the surviving spouse’s gross estate); §1014 (basis at death); §2207A (the surviving spouse’s estate recovers the tax on QTIP property from the trust); §2010 (2026 basic exclusion of $15,000,000). Florida has no state estate tax.
• Fla. Stat. §732.2065 (30% elective share); §732.2025(2) (elective share trust defined); §732.2095(2)(d) (a spouse’s interest in an elective share trust valued at 100%, 80% or 50% of principal, depending on the invasion power and power of appointment); §732.702 (waiver of spousal rights); §732.401 (homestead descent to a surviving spouse). (retrieved 2026-09-23)

Why This Trust Exists at All

In 14 years of law practice, the QTIP trust is my answer to a problem that exists only in second marriages, which is how to provide for a spouse without disinheriting your own children.

A common question I hear is, "Can my wife have the income and my kids still get the house?" For savings and investments the answer is yes, and the QTIP trust is how I do it. The house is harder, because a Florida homestead goes to a surviving spouse for life unless she signed a waiver, so I ask about the house first.

The part I watch most closely is the election, because the deduction is not automatic. The personal representative makes it on Form 706 within 9 months of death, and that person is often a child of the first marriage or the surviving spouse, each with a view about which side of the family should benefit.

Practice pointer. Choose the personal representative with the election in mind, and have the will direct the election rather than leave it to discretion. A deduction that depends on a choice by someone with a stake in the outcome has been left to someone else.

Avoid any clause that lets the trustee pay principal to the children while the spouse is alive, or that ends the income if the spouse remarries. Either clause disqualifies the trust for the marital deduction.

Kevin D. Klagge, Esq., admitted in Florida since 2012. Any case described is a decision of a court rather than a matter handled by this firm. General information rather than advice on your situation.

Updated on September 23, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. General information about federal and Florida law, not legal or tax advice, and no attorney-client relationship is created. Whether a QTIP trust fits depends on your family and estate. Do not send confidential information until we have agreed to represent you.