Trusts and Florida Divorce — How Beneficial Interests Are Actually Treated

By Nadia Pazos, Family Law Attorney, Pazos Law Group · May 2026  ·  ← All blog posts

Trusts are everywhere in HNW Florida divorce. Family trusts, dynasty trusts, asset-protection trusts, marital trusts, spendthrift trusts, and foreign trusts each carry their own divorce implications. The headline question is always the same: is the trust’s value reachable in equitable distribution, and what about distributions received during the marriage?

Which Florida Statutes Govern Equitable Distribution? (§ 61.075, as amended by ch. 2024-237)

Property division runs through Fla. Stat. § 61.075(1), which requires the court to begin from an equal split. The 2024 amendment (ch. 2024-237, effective 1 July 2024) added the closely-held-business valuation rules. Every proposition below is tied to the pinpoint subsection that supports it. Links go to the official text published by the Florida Legislature.

• § 61.075(1) — requires the court to set apart each spouse’s nonmarital property and to begin distribution from the premise that it should be equal, absent justification for an unequal split.
• § 61.075(1)(a)–(j) — lists the factors that can justify an unequal distribution, including contributions, economic circumstances, duration, career interruption, and the desirability of keeping a business intact.
• § 61.075(1)(i) — makes intentional dissipation, waste, depletion, or destruction of marital assets a factor when it occurs after filing or within 2 years before filing.
• § 61.075(3) — requires specific written findings identifying nonmarital assets, valuing significant marital assets, and assigning liabilities in any contested case without a stipulation.
• § 61.075(5) — permits an interim partial distribution on a sworn motion showing extraordinary circumstances.
• § 61.075(6)(a)1.b — makes the enhancement in value and appreciation of a nonmarital asset marital when it results from either party’s marital effort or the expenditure of marital funds.
• § 61.075(6)(a)1.c — supplies the coverture-fraction formula for the marital share of passive appreciation where marital funds paid down a mortgage on nonmarital real property.
• § 61.075(6)(a)1.e — makes all vested and nonvested retirement, pension, profit-sharing, annuity, deferred compensation, and insurance benefits accrued during the marriage marital assets.
• § 61.075(6)(a)1.f — sets fair market value as the standard of value for a closely held business and makes enterprise goodwill a marital asset the court must value.
• § 61.075(6)(a)2. — presumes real property held as tenants by the entireties is marital, whenever acquired.
• § 61.075(6)(b) — defines nonmarital assets: premarital property, noninterspousal gifts and inheritances, income from nonmarital assets not treated as marital, and assets excluded by valid written agreement.
• § 61.075(7) — fixes the cut-off date for classification as the earlier of a valid separation agreement or the filing of the petition, while leaving the valuation date to the judge.
• § 61.075(8) — presumes assets acquired and liabilities incurred after the date of marriage are marital, rebuttable by a showing to the contrary.
• § 61.075(9) — permits equitable distribution without regard to alimony, with alimony considered afterward.
• § 61.075(11) — abolishes special equity, which must now be pleaded as unequal distribution or as enhancement in value.
• § 61.076 — governs the distribution of retirement, pension, profit-sharing, annuity, and deferred compensation plans.
• § 61.16 — governs attorney’s and expert fee awards, including forensic accounting costs.
• § 61.08(1)(a) — governs the alimony forms considered after the estate is divided.
• Thompson v. Thompson, 576 So. 2d 267 (Fla. 1991) — the Florida Supreme Court decision on enterprise goodwill in a professional practice.
• Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010) — the Florida Supreme Court decision on the marital share of passive appreciation, now codified at § 61.075(6)(a)1.c.
• § 61.021 — requires 6 months of Florida residency before the petition that fixes the classification cut-off date.
• § 61.052 — supplies the ground — an irretrievably broken marriage — for the dissolution in which the estate is divided.
• § 61.19 — bars entry of the final judgment dividing the estate until at least 20 days after the petition is filed, absent a showing that the delay would cause injustice.
• § 61.071 — authorizes temporary support and suit money while valuation and financial discovery proceed.
• § 61.30(2) — supplies the net income definitions applied when a divided asset produces income.
• § 61.14 — equitable distribution is final once entered, while support obligations remain modifiable under this section.
• § 44.102(2)(c) — refers parenting disputes to family mediation, the forum in which most property settlements are also negotiated.

Source: Florida Legislature, 2025 Florida Statutes. Fla. Stat. ch. 61 Fla. Stat. ch. 61

“in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors” — Fla. Stat. § 61.075(1)

“If there is goodwill separate and distinct from the continued presence and reputation of the owner spouse, it is considered enterprise goodwill, which is a marital asset that must be valued by the court.” — Fla. Stat. § 61.075(6)(a)1.f

“The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage.” — Fla. Stat. § 61.075(7)

“The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.” — Fla. Stat. § 61.075(1)(i)

Answers to the Questions the Statute Actually Decides

Does Florida split everything 50/50 under § 61.075(1)?

Not automatically. The statute requires the court to begin from the premise of an equal distribution, then permits an unequal split where the factors in paragraphs (a) through (j) justify it. Nonmarital property is set apart first and is not divided at all.

What date fixes whether an asset is marital under § 61.075(7)?

Classification is fixed at the earliest of a valid separation agreement, a date the agreement expressly sets, or the filing of the petition. Valuation is a separate question — the same subsection lets the judge pick whatever valuation date is just and equitable, and different assets may be valued on different dates.

Is business goodwill divisible in a Florida divorce?

Enterprise goodwill is. § 61.075(6)(a)1.f, added by ch. 2024-237 effective 1 July 2024, makes goodwill that exists separate and distinct from the owner spouse’s continued presence and reputation a marital asset the court must value. The statute uses the term “enterprise goodwill”; the phrase “personal goodwill” appears nowhere in it.

What happens if a spouse wastes or hides marital assets?

§ 61.075(1)(i) makes intentional dissipation, waste, depletion, or destruction of marital assets a statutory factor supporting an unequal distribution, and it reaches conduct within the 2 years before the petition was filed, not just conduct after filing.

Statutory authority checked against the 2025 Florida Statutes on 6 August 2026.

Types of Trusts in Florida Divorce

Revocable Trusts (Living Trusts)

A revocable trust is essentially a probate-avoidance vehicle. The settlor retains the right to revoke, amend, or distribute trust assets. For divorce purposes, Florida courts generally treat assets in the settlor’s own revocable trust as directly owned by the settlor — the trust does not provide divorce protection.

If the divorcing spouse is the settlor and the assets in the trust are marital (acquired during the marriage), they are subject to equitable distribution like any other marital property.

Irrevocable Trusts

Once an asset is transferred to an irrevocable trust, the settlor has parted with ownership. The asset belongs to the trust, managed by the trustee for the beneficiaries. For divorce:

• If the divorcing spouse created the irrevocable trust during the marriage with marital funds, the transfer itself may be analyzed for dissipation or fraudulent conveyance.
• If the divorcing spouse is a beneficiary of an irrevocable trust created by someone else (typically a parent or grandparent), the beneficial interest is generally non-marital. But distributions received during the marriage may be marital.

Discretionary vs. Mandatory Distribution Trusts

This distinction is critical:

• Discretionary trust: The trustee decides whether and when to distribute. The beneficiary has no enforceable right to specific distributions. Florida courts generally cannot order the trustee to make distributions, but the beneficial interest still has value.
• Mandatory trust: The trustee must distribute according to a fixed formula or schedule. The beneficiary has an enforceable right, and the value is more easily quantifiable.

Spendthrift Provisions

A spendthrift clause prevents the beneficiary from assigning or transferring their interest and prevents creditors from reaching it. Florida law gives spendthrift trusts significant protection. However, spendthrift clauses do not protect against:

• Distributions actually received (which can be reached if commingled or used for marital purposes)
• Child support enforcement, in some circumstances

Foreign Trusts

Trusts established offshore (Bahamas, Cayman, Cook Islands, Liechtenstein) add complexity. The trust itself is governed by foreign law; the beneficiary’s rights are analyzed under that jurisdiction’s law. Florida courts can order distribution of the beneficiary’s interest if they have personal jurisdiction, but enforcement abroad depends on local law.

Marital vs. Non-Marital: The Core Analysis

For each trust position, two questions:

Question 1: Is the beneficial interest itself marital?

If the divorcing spouse received the beneficial interest from a third party (parent, grandparent) as a gift or bequest, the interest is generally non-marital under Fla. Stat. § 61.075(6)(b).

If the divorcing spouse created the trust during the marriage with marital funds, the trust property may still be marital, depending on the structure and purpose.

Question 2: What about distributions received during the marriage?

Even if the beneficial interest is non-marital, distributions received and used during the marriage may become marital. The analysis depends on:

• Whether the distributions were deposited into a joint account (commingling)
• Whether the distributions funded marital purposes (joint home, joint vacation property, shared expenses)
• Whether the distributions remained separate and traceable

Tracing Trust Distributions

Tracing is the technical work of following trust distributions through accounts and transactions to determine what is marital vs. non-marital. Common tracing problems:

• Multiple distributions over years, mixed with earned income
• Distributions used to fund joint real estate purchases
• Distributions invested into joint brokerage accounts
• Distributions used for family expenses (vacations, education, lifestyle)

Forensic accountants are typically retained to perform tracing. Without contemporaneous records and clear separation, tracing becomes much harder and the non-marital classification can be lost.

Trust Protection Strategies in Florida

• Pre-marital trust planning. Wealth transferred into an irrevocable trust before marriage is generally protected from equitable distribution. A properly drafted prenup adds further protection.
• Discretionary structure. Discretionary trusts provide stronger divorce protection than mandatory trusts because the beneficiary has no enforceable right to specific distributions.
• Third-party trustees. Independent (non-family) trustees insulate the trust from claims that the beneficiary effectively controls the trust.
• Spendthrift clauses. Standard practice in modern Florida trust drafting.
• Avoid commingling. If distributions are received, segregate them from marital accounts.

Frequently Asked Questions

Can my spouse get my trust in a Florida divorce?

Generally no — the trust itself is not divided. What may be at issue is the beneficial interest, which is non-marital if the trust was created by a third party (parent, grandparent) for your benefit. Distributions received during the marriage may be marital if they were commingled or used for marital purposes.

What's the difference between a discretionary and mandatory trust for divorce purposes?

A discretionary trust gives the trustee complete discretion over distributions, and the beneficiary has no enforceable right to specific distributions. A mandatory trust requires the trustee to distribute according to a fixed formula. Discretionary trusts provide stronger divorce protection.

Are distributions I received from a family trust during my marriage marital property?

It depends. If you kept the distributions separate and traceable, they remain non-marital. If you deposited them into joint accounts or used them for marital purposes (joint home, family expenses, joint investments), they may have become marital through commingling.

My spouse moved assets into an irrevocable trust during our marriage. Can I challenge that?

Yes. Transfers of marital assets into an irrevocable trust during the marriage may be analyzed for dissipation or fraudulent conveyance, particularly if the transfer was made within 2 years of filing. Florida courts can credit dissipated amounts back to the innocent spouse's side of equitable distribution.

Are offshore trusts protected from Florida divorce?

Less than you might think. Florida courts can order distribution of a Florida resident's beneficial interest if they have personal jurisdiction over the spouse. Actual enforcement abroad depends on the trust jurisdiction's law. Modern asset-protection trusts have become more difficult to defend against well-prepared divorce claims.

Related Reading

• High-Net-Worth Divorce in Florida
• Florida Equitable Distribution Explained
• Hidden Assets in a Florida Divorce
• International Divorce in Florida
• Manalapan & Gulf Stream Divorce Attorney
• Palm Beach Divorce Attorney
• Florida Family Law Glossary — 32+ Plain-English Definitions
• Dividing a Florida business in divorce
• Pensions, 401(k)s, and IRAs in equitable distribution

The information on this page is for general informational purposes only and does not constitute legal advice. Florida family law is fact-specific. Reading this article does not create an attorney-client relationship with Pazos Law Group.