In Florida high-asset divorce cases, trusts are among the most intricate and consequential financial elements to examine. For affluent families, trusts serve a wide variety of purposes: protecting wealth, planning estates, reducing taxes, and preserving assets for future generations. But during divorce, these same instruments can significantly complicate asset division, income calculations, and financial disclosure.
Whether you’re a trust beneficiary, a trustee, or a spouse concerned that your partner is hiding assets behind a trust, understanding the role of trusts in divorce is essential. The presence of a trust doesn’t always mean the property is beyond the court’s reach—but it does require a deeper level of legal strategy, forensic review, and individualized attention.
As a Tampa high net worth divorce lawyer, I regularly advise clients whose divorces involve family trusts, irrevocable trusts, discretionary trusts, or offshore trust structures. In this article, I’ll explain how trusts can complicate equitable distribution in Florida, what courts consider when evaluating trust interests, and how to protect your rights when millions in marital or separate wealth are involved.
The Basics: What Is a Trust?
A trust is a legal arrangement in which one party (the grantor or settlor) places assets under the control of a trustee, who manages those assets for the benefit of one or more beneficiaries. Trusts may be:
- Revocable or irrevocable
- Domestic or offshore
- Discretionary or mandatory in distribution
- For a single beneficiary or multiple generations
In a high net worth divorce, trusts might include:
- Dynasty trusts created by wealthy parents or grandparents
- Irrevocable life insurance trusts (ILITs)
- Domestic asset protection trusts
- Family real estate trusts
- Offshore asset protection structures
Each of these presents unique legal issues when divorce proceedings begin.
Florida Divorce Law: Equitable Distribution and Trusts
Florida applies equitable distribution to divide marital assets and debts in divorce. Non-marital property, such as assets acquired before the marriage or received by gift or inheritance, is generally not subject to division. So, how do trusts fit into this framework?
It depends on several factors:
- Was the trust created by one of the spouses or by a third party?
- Was the trust funded with marital or non-marital property?
- Did either spouse serve as trustee?
- Were marital funds used to enhance the value of the trust?
- Did one or both spouses benefit from trust distributions?
- Is the trust revocable or irrevocable?
These questions are critical because trusts may be:
- Marital property
- Sources of income (affecting alimony)
- Non-marital assets protected from division
- Commingled assets partly subject to distribution
As a Tampa high net worth divorce lawyer, I know the court’s analysis is nuanced. The outcome often depends on documentation, conduct, and the structure of the trust.
Trusts Created by Third Parties
Trusts created by someone other than the divorcing spouses—such as a parent or grandparent—are typically not marital assets. However, the court may still consider a spouse’s beneficial interest in the trust in several important ways:
- As a source of income for alimony purposes
- As an economic factor in equitable distribution of other assets
- As evidence of financial resources in fee and support disputes
If the trust provides regular distributions that the spouse relies on, the court may impute income. If the trust has been used to pay living expenses, real estate costs, or major purchases, the court may infer that the beneficiary has access to trust funds.
In these cases, a Tampa high net worth divorce lawyer must examine:
- Trust agreements and amendments
- Tax returns showing K-1 distributions
- Trustee correspondence
- Patterns of prior distributions
- Whether the trust includes a spendthrift or discretionary clause
The more control or access the beneficiary has, the more likely the court is to treat the trust as a factor in equitable distribution or support decisions—even if not divisible itself.
Trusts Created by One of the Spouses
When one spouse creates a trust, the analysis becomes even more complex. Courts will ask:
- Was the trust created before or during the marriage?
- Was it funded with marital property?
- Does the creator retain control as trustee?
- Are distributions discretionary or automatic?
- Did the other spouse benefit from trust assets?
A revocable trust created during the marriage with marital funds is usually a marital asset. An irrevocable trust may also be partly marital if it was funded with marital property or used for joint purposes.
In these cases, your Tampa high net worth divorce lawyer will trace the source of the trust’s funding, challenge or defend claims of marital contribution, and assess whether the trust was used to shelter assets.
Commingling and Transmutation of Trust Assets
Even if a trust started as non-marital property, it may become partly or wholly marital through commingling.
Examples of commingling:
- Using marital income to fund the trust
- Using trust distributions to buy jointly titled real estate
- Retitling trust assets into joint ownership
- Using trust funds to pay household or lifestyle expenses
- Paying for children’s education or vacations with trust funds
These actions can “transmute” non-marital assets into marital ones, subject to equitable distribution. Your Tampa high net worth divorce lawyer must analyze every transaction for signs of commingling—and help you gather documentation to either defend or dispute these claims.
Tracing the Source of Trust Funds
Tracing is a legal and forensic process used to determine whether trust property was derived from marital or non-marital sources. In high-asset divorce cases, tracing is essential when:
- Trusts were created before the marriage but added to during the marriage
- One spouse claims a trust as separate but offers no clear documentation
- Property inside a trust has appreciated significantly during the marriage
Your Tampa high net worth divorce lawyer will work with forensic accountants to:
- Review bank records
- Analyze trust statements
- Trace contributions from marital accounts
- Identify when and how property was transferred into the trust
- Assess whether increases in value were due to market forces or marital efforts
Successful tracing can protect inherited wealth—or uncover a spouse’s attempt to shield marital assets under a trust umbrella.
Trusts and Alimony
Trust income, even from a non-marital trust, may affect alimony. Florida law allows courts to consider all sources of income when determining a spouse’s ability to pay or need for support.
If your spouse receives:
- Regular trust distributions
- Discretionary distributions used to support lifestyle
- Trust-funded expenses (housing, vehicles, travel)
…the court may count those funds as income.
Similarly, if you are the beneficiary of a trust, your spouse may argue that you don’t need alimony due to your independent wealth.
Tampa high net worth divorce lawyers ensure that trust-related income is properly documented and presented during alimony negotiations or litigation.
Trusts and Discovery
Trust documents are not automatically disclosed in Florida divorce cases—but they may be requested during discovery.
Discovery tools include:
- Interrogatories
- Requests for Production
- Subpoenas to trustees, CPAs, or financial advisors
- Depositions of trustees or the grantor
If your spouse refuses to disclose trust documents, your Tampa high net worth divorce lawyer may ask the court to compel production. Courts may enforce discovery where the trust is:
- A potential source of income
- Funded with marital property
- Providing financial benefit to one or both spouses
Your lawyer may also seek to have trust assets frozen or placed under court supervision during litigation if there is a risk of dissipation or concealment.
Offshore and Asset Protection Trusts
Some high net worth individuals use offshore trusts or asset protection trusts to shield wealth from creditors—including spouses.
These trusts may be based in:
- The Cayman Islands
- Bermuda
- Switzerland
- Liechtenstein
- Cook Islands
While offshore trusts can make discovery more difficult, they are not beyond reach. Florida courts may:
- Infer that undisclosed offshore trusts are meant to hide assets
- Award a disproportionate share of other assets to the innocent spouse
- Issue subpoenas and compel foreign discovery through legal channels
A Tampa high net worth divorce lawyer experienced in offshore asset issues will coordinate with international counsel and forensic experts to ensure all trust interests are properly identified and addressed.
Trusts for the Benefit of Children
Parents sometimes create trusts for their children during the marriage—either for tax planning, education, or future inheritance purposes. These trusts may be irrevocable and structured to benefit children only.
Key considerations:
- Who contributed the funds?
- Were marital funds used?
- Are the spouses named as trustees?
- Can the trustees change beneficiaries or access principal?
If marital funds were used to fund a trust for the children, the contributing spouse may argue for a credit during equitable distribution. However, courts typically do not treat children’s trusts as marital property—especially if the assets are no longer under the spouses’ control.
Your Tampa high net worth divorce lawyer will ensure that you receive credit where appropriate and that trust assets for children remain protected.
Negotiating Trust Interests in Settlement
Litigating over trusts can be expensive, time-consuming, and unpredictable. In many cases, it is preferable to negotiate a global settlement that accounts for trust-related issues.
Options may include:
- Assigning offsetting marital assets to the non-beneficiary spouse
- Structuring alimony in light of trust distributions
- Clarifying ownership of trust-funded property
- Creating new post-divorce trusts for asset preservation
- Agreeing to future disclosure of trust activity for support adjustments
A skilled Tampa high net worth divorce lawyer will craft detailed settlement language to prevent post-divorce disputes and ensure that both parties understand their rights and obligations.
Using Trusts After Divorce
After divorce, trusts can continue to play an important role in wealth management. You may wish to:
- Remove your ex-spouse as trustee or beneficiary of a joint trust
- Update estate plans to reflect new circumstances
- Establish new trusts to protect child support or alimony payments
- Use a trust to receive retirement or business assets awarded in the divorce
A comprehensive divorce plan includes coordination with estate planning counsel to revise or terminate existing trusts and create new vehicles aligned with your post-divorce goals.
Your Tampa high net worth divorce lawyer can assist in this process and ensure that court orders and settlement agreements align with your estate documents.
FAQ: Trusts and Florida Divorce
Are trusts considered marital property in Florida?
Sometimes. Trusts created during the marriage and funded with marital assets may be subject to division. Trusts created by third parties are usually non-marital but may still affect support.
Can trust income be used to calculate alimony?
Yes. Courts can consider trust distributions—even discretionary ones—when assessing ability to pay or financial need.
What is a spendthrift clause, and does it protect the trust?
A spendthrift clause prevents creditors (including spouses) from seizing trust assets. But it may not prevent the court from considering trust income or access when determining support or property division.
Can I subpoena trust documents in divorce?
Yes. If the trust affects income, marital property, or financial resources, courts may compel production.
What if I inherited a trust before the marriage?
If you kept the trust separate and didn’t commingle it, the trust is likely non-marital. However, distributions used for marital purposes may affect classification.
Can I change my revocable trust during divorce?
You may need court approval during litigation. After the divorce is final, you should revise all estate documents, including trusts.
Do I have to share my child’s trust fund with my spouse?
Not usually. Trusts set up exclusively for children are not marital property—but contributions from marital assets may be credited back to the contributing spouse.
What if my spouse created a trust to hide assets?
The court may consider that trust a sham and include it in the marital estate or award other assets to offset the imbalance.
Can trust assets be used to pay legal fees in divorce?
In some cases, yes—if distributions are made regularly or if the beneficiary has control. Each case depends on the trust’s terms.
Should I speak with a Tampa high net worth divorce lawyer if my case involves a trust?
Absolutely. Trusts are too complex and too valuable to overlook. Specialized legal counsel is essential for protecting your rights.
Trusts can complicate—but also clarify—the financial picture in a high-asset Florida divorce. Whether you are seeking to protect family wealth, identify trust income, or ensure fairness in division, legal strategy and detailed analysis are key.
At The McKinney Law Group, we handle complex, trust-heavy divorce cases with the precision and discretion they demand. If your divorce involves trusts, family wealth, or high-value estate planning tools, contact a Tampa high net worth divorce lawyer today.
We’ll help you navigate the complexities, preserve your assets, and secure your financial future.
The McKinney Law Group: High-Asset Divorce Attorneys in Tampa Who Understand Complex Property Division
At The McKinney Law Group, we provide strategic legal representation for Tampa clients navigating high-asset divorces involving real estate, investments, and business interests. We understand that with greater assets comes greater complexity—and we’re here to protect what you’ve built.
We assist with:
✔ Valuation and division of businesses, professional practices, and real estate
✔ Stock portfolios, retirement accounts, and executive compensation packages
✔ Protecting separate property and identifying hidden assets
✔ Drafting and enforcing prenuptial or postnuptial agreements
✔ Collaborating with financial and tax professionals for long-term planning
Call 813-428-3400 or email [email protected] to schedule your high-asset divorce consultation in Tampa.