In high net worth divorces, few assets are more misunderstood—or more strategically significant—than trusts. From generational dynasty trusts to irrevocable life insurance trusts and offshore vehicles, trusts are often used by wealthy families to preserve wealth, shield assets from creditors, and provide for heirs. But when divorce enters the picture, the legal lines around trust assets can become blurry.
What happens to a trust in a Florida divorce? Can a spouse claim part of a trust created before the marriage? What if a spouse is a trustee or beneficiary? What if marital funds were contributed to a previously separate trust?
As a Tampa divorce lawyer who regularly handles high asset and complex divorce cases, I know that the answers to these questions are anything but straightforward. Florida law provides protection to certain trust structures—but that doesn’t mean trust assets are immune from scrutiny or division. If you or your spouse have a trust, understanding how that trust fits into your marital estate is critical for reaching an equitable and legally sound outcome.
This article explains how trusts are treated in Florida divorce proceedings, how they can impact alimony and property division, and what every high net worth spouse should know to protect their interests.
Understanding the Basic Types of Trusts in Divorce
Not all trusts are created equal. Some are designed to benefit one spouse for life. Others are created by a third party (such as a parent or grandparent) to benefit future generations. Each type of trust raises different legal and strategic considerations during divorce.
The most common trust types encountered in high asset divorce cases include:
- Revocable Living Trusts: Often used for estate planning, these are created and controlled by the grantor. Assets in a revocable trust are still considered part of the grantor’s estate for divorce and probate purposes.
- Irrevocable Trusts: Once created and funded, these cannot be altered or revoked by the grantor. However, a spouse’s beneficial interest may still hold value depending on the terms of the trust.
- Dynasty Trusts: Long-term trusts designed to preserve family wealth across generations. These are often funded by family members and designed to skip generations or limit distributions.
- Spendthrift Trusts: These limit a beneficiary’s access to trust principal or income and often contain provisions that prevent creditors (or ex-spouses) from accessing the funds.
- Discretionary Trusts: These give the trustee broad discretion over when, how, and whether to distribute income or principal to the beneficiary.
- Offshore Trusts: Established outside the U.S., often for tax planning or asset protection purposes. These can be harder to reach but not impossible to scrutinize.
Your Tampa divorce lawyer will begin by identifying the type of trust, who created it, who controls it, and what rights the beneficiary has under the terms of the trust.
Marital vs. Non-Marital: Is the Trust a Marital Asset?
In Florida, only marital assets are subject to equitable distribution. So the first question is: Is the trust—or the interest in the trust—a marital asset?
The answer depends on:
- When the trust was created
- Who created and funded the trust
- Whether the trust was funded with marital assets
- Whether the trust distributes income or principal
- How the beneficiary’s interest is defined
Trusts Created by a Third Party
If your spouse is the beneficiary of a trust created by a third party (such as a parent or grandparent), and the trust is not revocable by your spouse, it is generally not considered a marital asset.
However, this does not mean it has no impact on your divorce. The court may still consider distributions from the trust as part of your spouse’s income for the purpose of:
- Determining alimony or spousal support
- Calculating child support
- Evaluating overall economic circumstances
Your Tampa divorce lawyer will carefully analyze whether a third-party trust should be excluded from division or factored into support calculations based on the actual benefits received during the marriage.
Trusts Created by One of the Spouses
If one spouse created and funded a trust during the marriage—especially using marital funds—the trust itself may be considered a marital asset or may contain marital assets.
This is particularly true with:
- Joint revocable trusts created during the marriage
- Trusts funded by income earned during the marriage
- Trusts established to benefit both spouses or children
- Irrevocable trusts where one spouse retains control as trustee
In these cases, a Tampa divorce lawyer will examine trust documents, funding sources, and actual use of the trust to determine whether any portion is subject to equitable distribution.
Commingling and Transmutation of Trust Assets
Even if a trust was originally non-marital, it can become partially or wholly marital through commingling. For example:
- A spouse receives a distribution from a family trust and deposits it into a joint bank account.
- Trust assets are used to purchase jointly titled real estate.
- A separate trust distributes income that is used to pay marital debts or expenses.
When non-marital trust distributions are consistently mixed with marital assets or used to support the marital lifestyle, courts may treat the resulting property—or increase in value—as marital.
The key is documentation. If you want to protect a trust interest from division, your Tampa divorce lawyer will need to show that it remained separate and was not used to support the marriage. If you’re trying to include a trust in the marital estate, your attorney will focus on tracing marital contributions or benefit.
Trust Distributions and Support Calculations
Even if a trust is not a marital asset, it may still influence:
- Alimony (spousal support)
- Temporary support while the divorce is pending
- Child support calculations
- Payment of attorneys’ fees or expert costs
Under Florida law, courts may consider a party’s ability to pay support—including all sources of income. Regular distributions from a trust—even if the principal remains intact—may be included as income for support purposes.
In high net worth divorces, spouses often rely on trust income to fund their lifestyle. A Tampa divorce lawyer will ensure that all forms of financial support are disclosed and included in the support calculation.
If your spouse is a beneficiary of a discretionary trust, your attorney may need to show a pattern of past distributions—or argue that the trustee’s discretion has been exercised in a way that creates reliable income.
Valuing a Spouse’s Interest in a Trust
If a trust is subject to division, the next question becomes: what is it worth?
Valuation depends on:
- The structure of the trust (revocable, irrevocable, discretionary)
- The terms of the trust document
- The current and expected future distributions
- Any restrictions on transfer, use, or access
- Life expectancy and actuarial tables (for life interests)
For example, a trust that pays $250,000 per year to a spouse may be valued using a present value calculation. If the spouse is expected to live 20 more years, the trust might be valued based on a discounted cash flow of those payments.
However, if the trust gives a trustee complete discretion and has never distributed funds, a court may determine the value is speculative and decline to assign a dollar amount.
A Tampa divorce lawyer will work with financial experts and estate planning attorneys to establish defensible valuations, especially when trust income affects the fairness of a proposed settlement.
Discovery and Disclosure of Trust Interests
Full and honest disclosure is required in Florida divorce. But when it comes to trusts, many spouses attempt to withhold or misrepresent their interest—assuming it’s immune from scrutiny.
This is where aggressive discovery becomes essential. Your Tampa divorce lawyer may:
- Request copies of the trust agreement
- Issue subpoenas to trustees or financial institutions
- Depose the trustee or grantor
- Demand full accounting of past and future distributions
- Seek expert interpretation of ambiguous trust language
If your spouse fails to disclose a beneficial interest in a trust—or downplays its value—a Florida court may impose sanctions or alter the final distribution in your favor.
Courts take financial transparency seriously, particularly when one spouse attempts to hide wealth using estate planning tools.
Protecting Family Wealth from Future Claims
If you are the parent or grandparent of a child who is married—or engaged—you may be concerned about how your family wealth will be treated in the event of divorce. There are several ways to protect family trusts from equitable distribution:
- Use irrevocable discretionary trusts to limit access and control
- Appoint independent third-party trustees
- Avoid naming the spouse as a co-beneficiary or trustee
- Include spendthrift provisions to prevent creditors (or ex-spouses) from reaching trust assets
- Avoid commingling trust distributions with marital assets
- Consider including language in the trust that specifies distributions are not intended for marital use
Even if your child is not yet married, speak with a Tampa divorce lawyer about incorporating divorce-proof planning into your estate plan. These protections can preserve wealth for future generations and limit the risk of court entanglement in the event of divorce.
Strategic Settlement Considerations
If you’re going through a divorce that involves trusts, strategic planning is key. Your Tampa divorce lawyer will help you:
- Identify which trusts are relevant and why
- Use discovery tools to obtain documents, records, and financial data
- Evaluate how trust income or assets should impact alimony or property division
- Negotiate settlements that offset the value of trust interests with other assets (e.g., trading trust income rights for real estate or investment accounts)
- Draft settlement language that prevents future disputes, including indemnity and disclosure clauses
The best settlements are those that account for today’s realities and anticipate tomorrow’s challenges. With trusts, that means understanding future income streams, potential liquidity events, and the limits of court enforcement.
FAQ: Trusts in Florida Divorce Cases
Are trust assets always considered marital property?
No. Trusts may be non-marital if created by a third party and kept separate. But if marital funds are used to fund or benefit from the trust, some or all of the value may be marital.
Can a spouse hide assets using a trust?
They may try—but a skilled Tampa divorce lawyer can uncover undisclosed interests using subpoenas, depositions, and forensic analysis. Courts take financial concealment seriously.
Do trust distributions count as income for alimony?
Yes. Regular distributions may be considered part of a spouse’s income when calculating spousal or child support—even if the trust itself is not divided.
What if my spouse is the trustee of their own trust?
This can raise questions about control and access. Courts may scrutinize these trusts closely to determine whether they should be included in the marital estate.
What is a spendthrift clause, and does it protect against divorce?
Spendthrift clauses limit creditors’ ability to reach trust assets. They can offer some protection in divorce, but may not prevent all types of support or enforcement orders.
Can the court force a trust to distribute funds?
Generally no, especially in discretionary trusts. However, courts may still factor trust income into support calculations or award offsets in property division.
Is a revocable trust treated the same as an irrevocable trust in divorce?
No. Revocable trusts are typically considered part of the marital estate and subject to division. Irrevocable trusts require deeper legal analysis.
What if I inherited a trust during my marriage?
If the trust was created by someone else for your benefit and you didn’t commingle the distributions, it’s likely non-marital. But documentation and conduct matter.
Can I give up my interest in a trust during divorce?
You may be able to waive future claims or offset the value with other assets. However, you should always consult with a Tampa divorce lawyer before relinquishing rights.
Should I use a prenuptial agreement to protect a trust?
Yes. A prenuptial or postnuptial agreement can reinforce the separate nature of a trust and protect distributions from being included in a future divorce.
Trusts in high net worth divorces are legally nuanced, financially complex, and often emotionally charged. Whether you are the trust beneficiary or the spouse seeking a fair division of marital wealth, your legal strategy must reflect a deep understanding of trust law, Florida family law, and sophisticated financial planning.
At The McKinney Law Group, we represent high asset clients facing some of the most complex divorce challenges—often involving multimillion-dollar trusts, family wealth, and legacy planning. If you’re navigating a divorce that involves one or more trusts, contact a Tampa divorce lawyer with the experience and discretion you need to protect your future.
Let us help you safeguard your assets, secure your rights, and move forward with clarity and confidence.
The McKinney Law Group: Tampa Divorce Attorneys Who Help You Take Back Control
Divorce can feel like everything is changing at once—but you don’t have to face it alone. At The McKinney Law Group, we help Tampa clients regain control of their future through strong, thoughtful legal guidance that protects what matters most.
We assist with:
✔ Dividing marital property, real estate, and retirement accounts
✔ Negotiating fair alimony and support terms
✔ Creating child custody and time-sharing plans that work
✔ Handling both contested and uncontested divorce cases
✔ Advising on post-divorce modifications when life changes
Let us help you take the next step with clarity and confidence.
Call 813-428-3400 or email [email protected] today.