Trusts are a central component of many estate plans in Florida, allowing individuals and families to control how assets are managed, preserved, and ultimately passed on to beneficiaries. While there are numerous types of trusts, two broad categories—revocable trusts and irrevocable trusts—often form the foundation of an effective estate plan. Understanding their key differences, benefits, and potential drawbacks is essential for anyone looking to protect their legacy. Below, we explore what each type of trust entails under Florida law, discuss how they operate, and examine what happens when one spouse in a revocable trust arrangement passes away.
A revocable trust—often called a living trust—is a legal arrangement whereby the trust creator (called the “grantor” or “settlor”) transfers ownership of assets into the trust but retains the right to modify or cancel (“revoke”) the trust at any time. Under Florida law, this flexibility allows the grantor to amend trust provisions, change beneficiaries, or even terminate the trust altogether, provided they are mentally competent. A revocable trust usually becomes irrevocable upon the grantor’s death or incapacity, unless otherwise specified.
Avoiding Probate: Assets properly titled in a revocable trust generally avoid Florida’s probate process, which can be time-consuming and public.
Incapacity Planning: If the grantor becomes incapacitated, a successor trustee can step in to manage trust assets for the grantor’s benefit without the need for a guardianship or court intervention.
Flexibility: The grantor can update or revoke the trust as life circumstances change (e.g., marriage, divorce, new child, or acquisition of significant assets).
No Strong Asset Protection: Because the grantor retains control and can revoke the trust at will, assets within a revocable trust are generally not protected from creditors.
No Estate Tax Reduction: A revocable trust typically does not remove assets from the grantor’s taxable estate.
Ongoing Maintenance: Assets must be carefully retitled into the trust’s name. Failing to do so can diminish the trust’s effectiveness in avoiding probate.
In Florida, many married couples establish joint revocable trusts or separate revocable trusts. If one spouse dies:
✅ Joint Revocable Trust:
✅ Separate Revocable Trusts:
✅ Funding Issues:
In all cases, reviewing any homestead property considerations is crucial. Florida law imposes restrictions on devising a primary residence if the decedent leaves behind a spouse or minor children. Proper drafting and coordination of beneficiary designations help avoid conflicts with Florida’s homestead statutes.
An irrevocable trust is a legal arrangement where the grantor permanently transfers assets to the trust. Once established, the terms and assets are generally not subject to modification or revocation—unless the trust document includes specific provisions or the grantor obtains court approval under limited circumstances. The grantor relinquishes significant control, which can confer certain legal and financial benefits.
Choosing between a revocable or irrevocable trust depends on individual objectives, financial circumstances, and family dynamics. Factors include:
Consulting with an attorney who understands Florida Statutes regarding trusts is essential. They can ensure your documents comply with relevant state laws, including requirements for valid trust creation, trustee duties, and estate tax considerations.
Both revocable and irrevocable trusts serve important functions in Florida estate planning. Revocable trusts offer the advantage of flexibility and straightforward administration during your lifetime, whereas irrevocable trusts can provide robust asset protection and potential estate tax benefits. When one spouse passes away, the structure of the trust—joint or separate—dictates how assets are managed and distributed. Proper funding and coordination with beneficiary designations are critical to avoiding probate complications
If you’re uncertain about the best trust arrangement for your family or if you need to revise an existing trust, contact Smith Cors Law. Our Florida attorneys can help you explore trust options, draft the necessary documents, and ensure your plan aligns with your long-term goals while staying fully compliant with Florida law.
Our legal team is ready to answer your questions and guide you forward.
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