What Happens to a Revocable Living Trust in a Florida Divorce?

Going through a divorce in Florida is emotionally and financially taxing. When a couple has engaged in advanced estate planning by creating a revocable living trust, the divorce process becomes even more complicated. Many people falsely believe that placing an asset inside a revocable trust shields it from a divorce settlement. In reality, Florida family courts have broad authority to dissect trusts and distribute the underlying assets.

If you have an existing living trust and are filing for divorce in West Palm Beach, Fort Lauderdale, or anywhere in Florida, you must take immediate steps to protect your estate plan. Making unauthorized changes during a pending divorce can result in severe judicial sanctions. Using our US Attorney Directory to find a dual-specialist in family law and estate planning is highly recommended. Here is exactly what happens to your trust when you dissolve your marriage.

Joint Revocable Trusts vs. Separate Trusts

How the court treats your trust depends heavily on how the trust was originally established and whose assets are inside it.

Joint Revocable Trusts

A Joint Revocable Trust is created by both spouses, holding marital property like the primary residence, joint bank accounts, and shared investments. In a divorce, these assets are fully subject to Fla. Stat. § 61.075, Florida's equitable distribution statute. The family court judge at the Palm Beach County Circuit Court, West Palm Beach or the Broward County Circuit Court, Fort Lauderdale will generally order the joint trust to be dissolved, the assets removed, and the property divided fairly between the spouses.

Separate Revocable Trusts

If you created a separate trust prior to the marriage holding exclusively non-marital assets (such as an inheritance or a pre-marital business), those assets are generally safe from equitable distribution. However, in precedents like Kaaa v. Kaaa, 58 So. 3d 867 (FL Supreme Court 2010), courts have shown that if marital funds were used to maintain or improve the assets inside your separate trust (commingling), the appreciation in value becomes a marital asset subject to division.

How to Revoke or Amend a Trust During Divorce

Once a divorce petition is filed, most Florida counties issue an automatic "Standing Order" or mutual injunction. This court order explicitly prohibits both spouses from transferring, hiding, or dissipating assets. This means you cannot legally transfer the marital home out of your joint trust without permission.

You must fully disclose the trust assets when you submit Form 12.902(b), Florida, Supreme Court, Family Law Financial Affidavit (Short Form). If you wish to revoke the joint trust or amend the beneficiaries (e.g., removing your spouse and adding your children) while the divorce is pending, you must obtain written consent from your soon-to-be ex-spouse or file a formal motion requesting permission from the family court judge.

The Automatic Revocation of Ex-Spouses

Florida law provides a massive safety net if you forget to update your estate plan after the divorce is finalized. Under Fla. Stat. § 736.1105 for trusts (and Fla. Stat. § 732.507 for wills), any provision in your revocable trust that affects your ex-spouse becomes void the moment the final judgment of dissolution of marriage is signed. The law treats your ex-spouse as if they had died before you, effectively removing them as a beneficiary and as a successor trustee.

However, you should never rely solely on this statute. If you leave the old documents intact, your ex-spouse could still attempt to access bank accounts or challenge the trust, causing expensive probate litigation for your true heirs. You should legally revoke the old trust and create a new, individual revocable trust immediately after the divorce.

How Much Does it Cost in Florida?

Untangling a trust during a divorce adds to the legal expenses. You should anticipate the following costs:

• Trust Dissolution Fees: Estate planning attorneys typically charge $500 to $1,500 to formally draft dissolution documents for a joint trust and prepare the new deeds to transfer property back into individual names.
• Creating a New Individual Trust: Drafting a fresh, post-divorce revocable living trust will generally cost between $1,500 and $3,000.
• Family Lawyer Hourly Rates: Litigating trust assets during the divorce process will incur standard family law fees, which average $300 to $500 per hour.

How Long Does the Process Take?

You cannot fully finalize the separation of your trust assets until the family court signs the final divorce decree. A standard contested divorce in Florida takes anywhere from 6 to 12 months. Once the divorce is finalized and the judge orders the equitable distribution, it typically takes 2 to 4 weeks for an estate planning attorney to draft the property deeds, dissolve the old trust, and establish your new individual trust.

Frequently Asked Questions (FAQ)