What Happens to a Trust in a Divorce in Florida?

1. What Happens to a Revocable Trust in a Divorce?

Florida law voids every provision of a revocable trust that affects the grantor’s spouse once the marriage is dissolved, and the trust is then read as if the spouse had died on the date of the divorce. A husband whose trust leaves everything to his wife, then to his children, has a trust that leaves everything to his children the day the judgment is entered. The rule reaches every provision, so a former spouse named as successor trustee loses that role too. The annotated rule on divorce and your trust sets out the text.

Three exceptions keep a gift to a former spouse alive. The trust (or an amendment) was signed after the divorce, the trust states a specific intention that the gift survive divorce, or the divorce judgment itself says otherwise. The current version of the rule applies to anyone who dies on or after June 29, 2021.

The timing is the part that catches families. Dissolution happens when the court enters the judgment, not when the petition is filed. A wife who dies eight months into a contested divorce still has a husband under Florida law, and her trust still pays him what it says. Because a revocable trust can be amended at any time by its grantor, a spouse in a pending divorce usually amends the trust early, after checking with the divorce lawyer whether any order in the case restricts changes.

2. What Happens to Beneficiary Forms and Powers of Attorney?

Florida applies the same rule to most assets that pass by beneficiary form. A designation of a former spouse made before the divorce becomes void when the marriage is dissolved, and the asset passes as if the former spouse had died first. The rule covers life insurance, annuities, IRAs and Roth IRAs, pay-on-death bank accounts and transfer-on-death brokerage accounts. A will gets the same treatment.

The important exception is controlling federal law. An employer 401(k) or pension is governed by federal law, and the plan can pay the former spouse named on its form regardless of Florida’s rule. The Florida rule also yields where the divorce judgment requires you to keep life insurance for a former spouse or the children. The only safe course is to change every form yourself.

Two other documents end on their own schedule. A former spouse’s authority as your agent under a durable power of attorney ends when the divorce action is filed, unless the power of attorney says otherwise. A designation of a former spouse as your health care surrogate is revoked when the marriage is dissolved. Our page on the Florida durable power of attorney covers replacing an agent.

3. Can a Trust Protect Assets From Divorce?

A revocable trust cannot. You can revoke it and take everything back, so a divorce court treats its contents as yours and sorts them into marital and nonmarital property exactly as it would if the trust did not exist. Florida law says the same thing about creditors, making revocable trust property reachable to the extent it would be if you owned it directly.

An irrevocable trust is different. Property validly given to an irrevocable trust belongs to the trust, and a Florida appeals court held in 2016 that a home moved into an irrevocable trust during the marriage had stopped being a marital asset and was beyond the divorce court’s power to divide. The case is retold at the bottom of this page, because it shows the protection works in both directions.

Two limits apply. A spouse who moves marital property into an irrevocable trust to keep it from the other spouse invites a claim of wasting marital assets, and Florida lets the divorce court weigh any intentional dissipation within two years before the petition is filed when it divides what is left. And an irrevocable trust is a permanent gift, which is a large price for protection that a prenuptial agreement can often provide more cheaply and more precisely.

4. Is an Inheritance Held in a Trust Marital Property?

No. Florida’s divorce statute treats property acquired separately by gift, bequest, devise or descent from someone other than your spouse as nonmarital, along with anything acquired in exchange for it. Income the inheritance earns stays nonmarital too, unless the couple treated it or relied on it as marital money. The enhancement in value that comes from either spouse’s work during the marriage, or from marital money spent on it, is marital.

An inheritance usually loses its protection in the way it is handled rather than by any rule. A son who deposits his $200,000 inheritance into the joint checking account and pays the mortgage from it has made it very hard to prove what was his. An inheritance a parent leaves in a trust for the son, rather than outright, never enters the joint account in the first place.

The kind of trust matters too. Where the trustee decides whether to pay, a creditor of the beneficiary, including a former spouse, cannot force a payment or attach the beneficiary’s interest. Where the trust carries a spendthrift clause, a former spouse holding a court order for support or alimony can ask the court to attach distributions, but only as a last resort after showing the usual ways of collecting have failed. Our guide on protecting your child’s inheritance covers how parents write these trusts, and the page on the Florida spendthrift trust covers the clause itself.

5. Can a Trust Be Split in Divorce?

The answer depends on the kind of trust.

• A couple’s joint revocable trust comes apart by contribution. Each spouse may revoke the trust as to the property that spouse contributed, and the divorce court then divides the marital property under the usual equitable distribution rules, starting from an equal split.
• A Florida community property trust ends by law on divorce, and the trustee distributes half the assets to each spouse. The ordinary equitable distribution statute does not apply to what is in it. The rule on divorce and a community property trust covers the details.
• An irrevocable trust usually is not split by the divorce court. Florida’s statute lets a court modify an irrevocable trust only on the application of a trustee or a qualified beneficiary, and the court can otherwise act only with the consent of every beneficiary. Our page on changing an irrevocable trust covers the routes.

6. What Happens to a House in a Joint Trust?

A house a married couple buys together is marital property, and Florida presumes that real property the couple holds as tenants by the entirety is marital, whenever it was acquired. Deeding that house into the couple’s joint revocable trust does not change its character for the divorce.

A house one spouse owned before the marriage is harder. Since 2024, Florida’s divorce statute provides that an interspousal gift of real property cannot be made without a writing that meets the formal requirements for a deed, and that a spouse joining in a homestead deed to someone else does not by itself turn the house into marital property. Whether a particular deed into a joint trust counts as a gift to the other spouse turns on the deed, the trust and the facts, so the question is best answered before the deed is signed. The appreciation from paying the mortgage with marital money is marital under a formula in the statute either way. Our page on a homestead in a revocable trust covers the other Florida rules for the home.

7. What Should You Do With Your Trust When a Divorce Starts?

Five documents need attention the week a divorce is filed, subject to any order in the case.

1. Your revocable trust. Amend it to remove your spouse as beneficiary and successor trustee, because the automatic rule waits for the judgment.
2. Your will. The same rule waits for the judgment, and a will naming your spouse as personal representative stays in force until then.
3. Every beneficiary form, especially an employer 401(k) or pension, where federal law can override Florida’s rule.
4. Your durable power of attorney. Your spouse’s authority ends when the action is filed, so name a new agent the same week.
5. Your health care surrogate. Name someone else now, because the automatic revocation also waits for the judgment.

After the judgment, sign a fresh amendment or a restatement even if nothing else changes, so the trust confirms your wishes in a document signed after the divorce. Our page on amendment versus restatement explains the choice, and the revocable living trust guide covers the trust itself.

What Does It Cost to Update a Trust for a Divorce?

Reviewing and restating an existing trust is a flat fee quoted at consult. A new Complete Trust Plan, with the trust, the will, the power of attorney, the health-care documents and a deed, is a flat fee from $3,200. A prenuptial agreement for a new marriage is a flat fee quoted at consult. We do not represent either spouse in the divorce itself, and a divorce lawyer should confirm that no order in your case limits changes before you sign anything. Recording and other government costs are additional and passed through at cost. Advertised fees are honored for 90 days from the posted date. A dispute over a trust after a divorce is litigation, which we quote per matter.

Frequently Asked Questions

Common Situations

The father who never updated his trust. A father divorces in 2019 and never touches his 2012 trust, which leaves everything to his wife and names her successor trustee. He dies in 2026. Florida’s rule reads the trust as if she had died in 2019, so his children take and his sister, the backup trustee, serves. His IRA form still names his former wife, and Florida voids that designation too.

The daughter with an inheritance in trust. A mother leaves her daughter’s share in a discretionary trust with an independent trustee. The daughter later divorces. Her husband cannot force a distribution or count the trust as marital property, and the money the trustee paid for the grandchildren’s school never passed through the joint account.

The wife who died mid-divorce. A wife files for divorce and dies four months later, before any judgment. Her trust still names her husband, so he takes under it. Had she signed an amendment in the first week, the trust would have gone to her children.

Sources of Law

• Fla. Stat. §736.1105(2), (2)(a), (2)(b), (3) (revocable trust provisions affecting the spouse void on dissolution; dissolution at judgment; exceptions; applies to decedents dying on or after June 29, 2021); §732.507(2) (the same rule for wills).
• Fla. Stat. §732.703(2), (3), (4)(a), (4)(d) (designations of a former spouse on life insurance, annuities, IRAs, pay-on-death and transfer-on-death accounts void on dissolution; exceptions for controlling federal law and court-ordered coverage); §709.2109(2)(b) (agent spouse’s authority ends when a dissolution action is filed); §765.104(2) (dissolution revokes a former spouse’s designation as health care surrogate).
• Fla. Stat. §61.075(1)(i), (6)(a)1.a., b., c., d., (6)(a)2., (6)(b)1. to 4. (dissipation within two years before filing; marital assets; enhancement; entireties real property presumed marital; interspousal gifts of real property require a writing complying with §689.01; nonmarital assets including inheritances and their income). Retrieved September 30, 2026.
• Fla. Stat. §736.0505 (annotated)(1)(a) (revocable trust property reachable by the settlor’s creditors); §736.0602 (annotated)(2)(b) (each settlor of a joint trust may revoke as to that settlor’s contribution); §736.0503 (annotated)(2)(a), (3) (spendthrift clause unenforceable against a spouse or former spouse with a support or alimony order, as a last resort); §736.0504 (annotated)(2) (discretionary distributions cannot be compelled or attached); §736.04113(1) (modification of an irrevocable trust on application of a trustee or qualified beneficiary); §736.1508 (community property trust terminates on dissolution; §61.075 does not apply).
• Case retold below: Nelson v. Nelson, 206 So. 3d 818 (Fla. 2d DCA 2016). Opinion read in full; retrieved September 30, 2026.

The Trust That Worked Exactly as Written, Against the Man Who Wrote It

Many cases like this keep coming up with the same shape. A spouse signs an irrevocable trust for a sensible reason, the marriage later ends, and the trust keeps doing what it says.

A husband bought a home in Palm Desert, California, during his marriage and titled it in his name and his wife’s. In 2010 he signed an irrevocable trust for his wife and her descendants, named her the sole trustee, funded it with $10 in cash, and seven months later the couple deeded the California home into it. The trust waived every power he had to change or revoke it and said nothing about divorce. He later explained that the point was to protect the home from claims by his own heirs if he died before her. When the couple divorced in Collier County, the trial judge treated the house as marital property and divided it. The Second District reversed in 2016. The home had become the trust’s property the day it was deeded in, it was no longer an asset of either spouse, and the divorce court had no power to reach it. The court could have changed the trust only if the wife, as trustee, or a beneficiary had asked, or if every beneficiary had agreed, and neither the wife nor her adult daughter had done either.

In reviewing that opinion and the Trust Code sections it construes, I have a few take-home points.

The first is that irrevocable means what it says. The husband got exactly the protection he paid for, except that it protected the house from him.

The second is the divorce clause. A trust for a spouse can define the spouse as the person the grantor is married to at the time, or end the spouse’s interest on a divorce filing. Avoid signing a spousal trust that is silent on divorce, because Florida’s automatic rule for revocable trusts does not rescue an irrevocable one.

The third is the trustee. The wife held the only seat that could ask a court to change the trust. An owner who names the beneficiary as sole trustee has given that person the last word, and every Complete Trust Plan I prepare, flat fee from $3,200, asks who should hold that seat if the marriage ends. One limit is worth stating plainly. The appeals court sent the case back to redo the division of the other marital property, so the opinion does not say what the home was worth or how the rest of the estate was divided.

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.