The half that surprises people
Neither subsequent marriage, birth, nor adoption of descendants shall revoke the revocable trust of any person.
Section 736.1105(1), Florida Statutes.
People arrive expecting the opposite, because probate law has rules protecting a spouse married after a will was signed and children born after it. Those rules do not operate here. Marry, have children, adopt children, and your revocable trust is exactly as it was.
Which is a warning rather than a reassurance. A trust drafted before a marriage will keep distributing as though the marriage never happened. Nothing corrects it automatically, and the only fix is to amend the trust, which for a revocable trust is straightforward under section 736.0602.
The half that operates by itself
Any provision of a revocable trust that affects the settlor’s spouse is void upon dissolution of the marriage of the settlor and the spouse, whether the marriage occurred before or after the execution of such revocable trust. Upon dissolution of marriage, the revocable trust shall be construed as if the spouse had died at the time of the dissolution of marriage.
Section 736.1105(2), Florida Statutes.
Divorce is treated differently from marriage, and the mechanism is the same one the slayer rule uses in section 736.1104. The person is treated as having died, at the moment of dissolution. Alternative takers step up, substitute gifts operate, and a former spouse named as trustee is out as well, since a provision naming them affects them.
Note the timing rule. Dissolution occurs when the marriage is judicially dissolved or declared invalid by court order. A long separation, a filed petition, or a signed settlement agreement does not trigger it. Until the judgment, the provisions stand.
Three exceptions preserve provisions the statute should not disturb. A provision executed after the dissolution, because that reflects a decision made with knowledge of the divorce. A provision where the trust states a specific intention to the contrary, which is the drafting answer for someone who genuinely wants to provide for a former spouse. And a provision where the dissolution judgment expressly provides otherwise, which is how a court order requiring continued provision survives.
The date that decides whether any of this applies
This section applies to revocable trusts of decedents who die on or after June 29, 2021.
Section 736.1105(3), Florida Statutes, added in 2021.
Read the trigger carefully. It is not the date the trust was signed, and it is not the date of the divorce. It is the date the settlor died. For an estate where death preceded June 29, 2021, this version of the section does not apply, and the earlier law and the trust’s own terms govern.
The gap a court has pointed at
The only judicial mention of this section is a footnote, and what makes it valuable is that the court cited the section in order to describe what sits beside it.
The case was an equitable distribution appeal. A marital home had been transferred into an irrevocable trust, and the Second District held it had ceased to be a marital asset and was beyond the trial court’s reach. In a footnote it observed.
Although the Florida Trust Code contains a statute voiding revocable trust provisions affecting a settlor’s spouse upon the dissolution of marriage, § 736.1105, and the Florida Probate Code likewise contains a statute voiding will provisions affecting a testator’s spouse upon the dissolution of marriage, § 732.507(2), Fla. Stat. (2015), the legislature has not enacted a similar statute voiding irrevocable trust provisions affecting a settlor’s spouse upon the dissolution of a marriage.
Nelson v. Nelson, 206 So. 3d 818 (Fla. 2d DCA 2016), footnote 2.
Wills are covered. Revocable trusts are covered. Irrevocable trusts are not.
That asymmetry has real consequences. A person who set up an irrevocable trust naming their spouse as a beneficiary, and then divorced, does not get the benefit of any automatic voiding rule. The former spouse remains a beneficiary unless something else removes them, and the routes available are the ordinary ones (judicial modification, nonjudicial modification, or a power reserved in the instrument itself).
It is worth pairing with what that case actually held, because the two points cut in opposite directions. Putting property into an irrevocable trust takes it out of the divorce entirely, which is why people do it. The same feature means the divorce does not take the ex spouse out of the trust.
What to do about it
If you are divorcing and have a revocable trust, this section does a good deal of the work automatically. It is still worth amending, because relying on a construction rule is worse than saying what you mean, and because the section only voids provisions affecting the spouse, not provisions naming their relatives.
If the trust is irrevocable, do not assume anything happens automatically. Nothing does.
And if you are remarrying, remember the first subsection. Nothing about the new marriage changes the trust, and the document will do exactly what it said before.