EN ES
Pazos Law Group Prenups · Divorce · Family Law

Florida Prenups When There’s a Trust: Beneficiaries, Family Wealth, and the Four Ways Trusts Leak in a Divorce (2026)

By Nadia Pazos, Family Law Attorney, Pazos Law Group · Updated

Families with trusts often assume the planning is done: the assets sit in an irrevocable trust, there’s a spendthrift clause, nothing to discuss. Florida law says otherwise. The trust corpus is usually safe — but trust income drives alimony and child support, distributions can be garnished despite a spendthrift clause, appreciation and commingling convert separate wealth into marital property, and the elective share reaches revocable trusts at death. A prenuptial agreement is the instrument that closes what the trust cannot.

Quick Answer

I’m a trust beneficiary. Why would I need a prenup?

Because the trust protects the corpus, not you. An irrevocable trust is an entity distinct from either spouse and its assets are generally beyond equitable distribution (Nelson v. Nelson, 206 So. 3d 818 (Fla. 2d DCA 2016)) — but Fla. Stat. § 61.046(8) counts trust payments as income for alimony and child support, Berlinger v. Casselberry, 133 So. 3d 961 (Fla. 2d DCA 2013), lets a former spouse garnish spendthrift-trust distributions for alimony, § 61.075(6)(a)1.b. makes marital-effort appreciation of nonmarital assets marital, and Hooker v. Hooker, 220 So. 3d 397 (Fla. 2017), shows commingled or gifted assets becoming marital despite a valid prenup. A trust-specific prenup — with full disclosure and § 732.702 formalities — is how those gaps get closed.

What the Trust Already Protects (§ 61.075(6)(b); Nelson)

Start with the good news. Under § 61.075(6)(b), nonmarital assets include assets acquired separately by noninterspousal “gift, bequest, devise, or descent,” assets acquired before the marriage, and income derived from nonmarital assets unless the parties treated that income as marital. A beneficial interest in a trust your parents or grandparents created is squarely in that category.

And the trust itself is not a party to your marriage. In Nelson v. Nelson, 206 So. 3d 818 (Fla. 2d DCA 2016), Florida’s Second District held that property transferred to an irrevocable trust became an asset of the trust — an entity distinct from husband and wife — and was therefore not a marital asset to be distributed. A divorce court divides what the spouses own; a properly maintained irrevocable trust is not on that list.

If that were the whole story, trust beneficiaries would not need prenups. It is not the whole story. Florida law leaks around a trust in four places.

Leak #1: Trust Distributions Are “Income” for Alimony and Child Support (§ 61.046(8); Bacher)

Fla. Stat. § 61.046(8) defines income as “any form of payment to an individual, regardless of the source,” and the statute’s list expressly includes trusts. Distributions you receive — and, as a practical matter, the lifestyle they funded — shape the need-and-ability-to-pay analysis for alimony. In Bacher v. Bacher, 520 So. 2d 299 (Fla. 3d DCA 1988), trust distributions figured in the support analysis, and Florida courts have continued to look at what a beneficiary spouse regularly received and spent during the marriage.

A prenup can address alimony directly: § 61.079(4)(a)4. permits the parties to contract about “the establishment, modification, waiver, or elimination of alimony,” subject to the narrow public-assistance exception of § 61.079(7)(b). What no agreement can touch is a child’s right to support — § 61.079(4)(b) forbids it — and trust distributions remain income in that guideline calculation regardless of the prenup.

Leak #2: A Spendthrift Clause Is Not a Divorce Shield (Bacardi; Berlinger)

Spendthrift provisions protect assets inside the trust; they do not make the beneficiary’s stream of distributions untouchable. The Florida Supreme Court held in Bacardi v. White, 463 So. 2d 218 (Fla. 1985), that as a last resort, disbursements from a spendthrift trust may be garnished to enforce court-ordered alimony. Nearly three decades later, Berlinger v. Casselberry, 133 So. 3d 961 (Fla. 2d DCA 2013), applied that rule with teeth: even where the trustees stopped direct distributions and instead paid the beneficiary’s expenses, a continuing writ of garnishment against trust distributions was proper to collect alimony.

There is also a quieter risk. Under § 61.075(1), a court dividing marital assets may adjust for “the economic circumstances of the parties” and “any other factors necessary to do equity and justice.” A large beneficial interest — even one the court cannot divide — can influence an unequal division of what is divisible. Practitioners call it the offset risk. A prenup that fixes the division of marital property by formula removes the discretion the offset rides on.

Leak #3: Appreciation and Effort (§ 61.075(6)(a)1.b.; Kaaa)

Nonmarital property does not always stay entirely nonmarital. § 61.075(6)(a)1.b. makes marital the “enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets.” Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010), extends the principle even to passive appreciation where marital funds carried the asset.

For trust families this bites when a beneficiary works in the family business the trust owns, manages trust real estate, or receives distributions that get reinvested with marital effort. The active-appreciation slice of a nonmarital asset is exactly the kind of ambiguity a prenup can settle in advance: § 61.079(4)(a)1.–3. lets the parties contract about rights in property “whenever and wherever acquired,” including its income and appreciation.

Leak #4: Commingling and Transmutation — Even With a Prenup (Hooker)

The Florida Supreme Court’s decision in Hooker v. Hooker, 220 So. 3d 397 (Fla. 2017), should be required reading for every trust beneficiary who signs a prenup and then relaxes. There, properties acquired with the husband’s nonmarital funds were held to have become marital through interspousal gift — donative intent, delivery, and surrender of control — notwithstanding a valid premarital agreement. Titling, joint use, and course of conduct did what the agreement was supposed to prevent.

The lesson: the prenup is a necessary instrument, not a self-executing one. It should be paired with hygiene the agreement itself can prescribe — separate accounts for distributions, no joint titling of trust-derived assets, documented tracing — so that a decade of marriage does not quietly transmute what the trust and the agreement both meant to keep separate.

The Elective Share Reaches Trusts at Death (§ 732.2035; § 732.702)

Divorce is not the only exposure. A surviving spouse in Florida can elect against the estate and take 30% of the elective estate — and § 732.2035 sweeps the decedent’s revocable trust and certain other nonprobate assets into that pool. For a beneficiary who will one day hold wealth in a revocable trust of their own, an unwaived elective share can undo an entire estate plan.

A prenup can waive the elective share and the other death-time spousal rights — but § 61.079(10) preserves the formalities of § 732.702, which requires the waiving party to sign in the presence of two subscribing witnesses. Sign with two witnesses and a notary, and coordinate the prenup with the family’s estate-planning counsel so the documents point the same direction.

Disclosing a Trust Interest (§ 61.079(7)(a)2.)

The reflex in trust families is discretion — don’t show the numbers. In prenup practice that reflex is dangerous. Enforceability under § 61.079(7)(a) depends on “fair and reasonable disclosure of the property or financial obligations” (or a valid written waiver of disclosure). For a trust interest, sound disclosure identifies the trust and trustee, the nature of the interest (mandatory income, discretionary, remainder), and reasonable information about magnitude and distribution history. An undisclosed family trust discovered in litigation is the classic seed of a set-aside motion under § 61.079(7)(a) and Casto v. Casto, 508 So. 2d 330 (Fla. 1987).

Disclosure does not mean surrendering control: the schedules can describe a discretionary interest honestly — including that distributions are within the trustee’s discretion and may be nothing — without promising anyone anything.

If You Created the Trust Yourself (§ 736.0505)

One warning for self-made wealth: a trust you settled for your own benefit does not hide assets from claims. Under § 736.0505(1)(b), creditors can reach the maximum amount that could be distributed to a settlor-beneficiary, spendthrift clause or not. Florida is not a domestic asset-protection-trust state for your own creditors. For a marrying settlor, the prenup — not the trust — is the instrument that defines what a future spouse may claim.

For Parents, Trustees, and Estate Planners

Much of our trust-related prenup work starts with the older generation. Florida policy is on your side: since Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962), the Florida Supreme Court has treated fairly made antenuptial agreements as consonant with public policy. Families increasingly make a prenup part of the wealth-transfer conversation before a wedding. What makes it work legally:

  • Time. The agreement is negotiated months before the wedding, never on its eve — voluntariness under § 61.079(7)(a)1. is the first thing challenged.
  • Independent counsel for the non-beneficiary fiancé(e), so overreaching arguments never get traction.
  • Honest disclosure of the trust interest, coordinated with the trustee.
  • Coordination between family-law counsel and the family’s trust and estate lawyers — the prenup, the trust instruments, and the estate plan should tell one story.

For couples where the wealth includes businesses or startup equity, see our pages on high-net-worth prenups and prenups for founders and equity owners.

Frequently Asked Questions

My trust is irrevocable and has a spendthrift clause. Do I really need a prenup?

Yes. The trust corpus is well protected — Nelson v. Nelson, 206 So. 3d 818 (Fla. 2d DCA 2016), treats an irrevocable trust as an entity distinct from either spouse. But Florida reaches around the trust in ways a spendthrift clause does not stop: trust distributions count as income for alimony and child support (Fla. Stat. § 61.046(8)), distributions can be garnished to pay alimony notwithstanding a spendthrift provision (Berlinger v. Casselberry, 133 So. 3d 961 (Fla. 2d DCA 2013)), and a court can weigh your beneficial interest when dividing the marital estate unequally under § 61.075(1). A prenup addresses what the trust cannot.

Isn't my trust interest already nonmarital property in Florida?

Usually the interest itself is. Fla. Stat. § 61.075(6)(b) makes assets acquired by noninterspousal gift, bequest, devise, or descent — and income from nonmarital assets, unless treated as marital — nonmarital. The problem is the four leak points: appreciation from marital effort or funds (§ 61.075(6)(a)1.b.; Kaaa v. Kaaa), commingling and interspousal-gift transmutation (Hooker v. Hooker), distributions used for the marital lifestyle shaping alimony (Bacher v. Bacher), and the offset risk in unequal distribution. The prenup exists to close and document those.

Can a prenup stop trust distributions from counting toward alimony?

A prenup can waive or limit alimony itself under § 61.079(4)(a)4., subject to the public-assistance exception in § 61.079(7)(b) — and that waiver is how distributions stop mattering for alimony. What no agreement can do is affect a child's right to support (§ 61.079(4)(b)); trust distributions remain income for child support under § 61.046(8) no matter what the prenup says.

My parents say they won't make distributions if we divorce. Doesn't that solve it?

Not reliably. In Berlinger v. Casselberry, the trustees paid expenses for the beneficiary rather than making direct distributions, and the Second DCA allowed a continuing garnishment against the trust distributions anyway. Discretion helps, but Florida courts look at the pattern of what was actually paid — and past distributions that funded the marital lifestyle influence alimony (Bacher). The clean solution is an alimony waiver or formula in a prenup, agreed while everyone is cooperative.

Do I have to disclose my trust to my fiancé(e)?

Yes, if you want the agreement to hold. Enforceability under § 61.079(7)(a) turns on fair and reasonable disclosure of property and financial obligations. For a trust interest that means identifying the trust, your interest in it (mandatory, discretionary, remainder), and reasonable information about size and distribution history — or a valid written waiver of disclosure. Hiding the family trust is how prenups get set aside.

Does a prenup protect the trust if my spouse claims an elective share when I die?

That is one of the biggest reasons trust families need one. Florida's elective share is 30% of the elective estate, and § 732.2035 pulls the decedent's revocable trust and certain other nonprobate assets into that estate. A prenup can waive the elective share — but the waiver must satisfy Fla. Stat. § 732.702, including the two-subscribing-witness formality preserved by § 61.079(10). This is where prenup drafting and estate planning have to be coordinated.

I'm the one who created my trust. Does it protect assets from my future spouse?

Be careful. For a self-settled trust — one you created for your own benefit — Fla. Stat. § 736.0505(1)(b) lets creditors reach the maximum amount that could be distributed to you, spendthrift clause or not. Florida does not honor domestic self-settled asset-protection against your own creditors the way some states do. A prenup is the reliable instrument for defining what a future spouse can and cannot claim.

Can my parents require a prenup as a condition of my inheritance or trust distributions?

Talk to trust counsel about the trust side, but Florida policy favors marital agreements: since Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962), the Florida Supreme Court has treated fairly negotiated antenuptial agreements as consistent with public policy. Families increasingly build a prenup expectation into wealth-transfer planning; what matters legally is that the resulting agreement is signed voluntarily, with disclosure and time, so it survives § 61.079(7)(a) and Casto scrutiny.

Official Sources & Related Reading

The information on this page is for general informational purposes only and does not constitute legal advice, and it does not address the law of any state or country other than Florida except as expressly noted. Reading or sharing this content does not create an attorney-client relationship with Pazos Law Group. Immigration law is federal and highly fact-specific; consult an immigration attorney about visa matters. Florida law and the application of statutes change over time; please consult a licensed Florida attorney about your specific situation, and counsel licensed in any other state or country whose law may apply.