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Marital Trust

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A marital trust is a legal arrangement used in estate planning to provide financial protection and benefits for a surviving spouse after the death of a grantor. It helps ensure that assets are preserved and managed for the surviving spouse's benefit and estate tax benefits. Let us learn more about the important aspects of marital trust below.

How a Marital Trust Works

A marital trust is important to ensure that a spouse gets all the required financial arrangements after the demise of the partner. Here is how marital trust typically works in countries like the United States:

  • Creation: A marital trust is typically established as part of an estate plan, often through a will or a revocable living trust. The grantor designates the trust as the recipient of specific assets upon their death.
  • Funding: The grantor transfers assets into the marital trust. The trust becomes the legal owner of these assets. Moreover, such assets are managed according to the trust's provisions.
  • Trust Terms and Conditions: The trust document specifies the terms that govern the trust's operations. It outlines how income and principal will be distributed and managed during the surviving spouse's lifetime.
  • Income and Principal: The surviving spouse is entitled to receive income generated by the trust's assets during their lifetime. This income can come from interest, dividends, or business profits. The trust document may also allow the surviving spouse to access the principal for specific purposes, such as healthcare, education, or living expenses.
  • Duration and Final Distribution: The marital trust can continue for the lifetime of the surviving spouse. It may also continue for a specified period outlined in the trust document. The remaining assets in the trust are distributed according to the grantor's wishes. This process happens upon the surviving spouse's death. These beneficiaries could include children, grandchildren, or other individuals too.

Essential Considerations for a Marital Trust

Several important considerations must come to mind when establishing a marital trust. These factors will help ensure that the trust aligns with specific goals and circumstances. Here are some key considerations for marital trust:

  • Estate Tax Planning: One primary purpose of a marital trust is to take advantage of the marital deduction for estate tax purposes. The marital deduction allows assets to pass to the surviving spouse tax-free, effectively postponing estate taxes until the surviving spouse's passing. An experienced estate planning attorney or tax professional can help understand the potential estate tax implications. They can also ensure the trust is structured appropriately to maximize tax benefits.
  • Trust Terms and Distribution: Clearly define the terms and conditions of the marital trust. Determine the distribution of income and principal to the surviving spouse during their lifetime. Consider the surviving spouse's financial needs and long-term goals. Additionally, establish guidelines for the final distribution of trust assets upon the surviving spouse's death. This can involve specifying beneficiaries, such as children, grandchildren, or charitable organizations, and the proportions in which the assets will be distributed.
  • Asset Protection: A marital trust can provide asset protection for the surviving spouse. Placing assets within the trust may be shielded from potential creditors, lawsuits, or other financial risks. This protection ensures that the trust assets remain available for the support and well-being of the surviving spouse throughout their lifetime.
  • Trustee Selection: Selecting a trustee is important when establishing a marital trust. The trustee is the one who manages the trust assets and carries out the trust's terms. Consider appointing a trustee who is knowledgeable in trust administration, financially competent, and impartial.
  • Flexibility and Amendment: Consider including provisions in the trust that allow for flexibility and amendments. Life circumstances and family dynamics can change over time, so having the ability to modify the trust if necessary can be valuable. Including provisions for amendment or the ability to create additional trusts, such as a power of appointment trust, can provide flexibility to adapt to future changes.
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Steps to Engage a Lawyer for a Marital Trust

It is advisable to approach a lawyer specializing in estate planning and marital trusts when seeking assistance with the same. Consider the following steps when approaching the professional for marital trust guidance:

  1. Conduct Research. Conduct research to identify reputable estate planning lawyers in the area who have expertise in marital trusts. Seek recommendations from friends, family, or financial advisors familiar with estate planning attorneys. Online directories and professional organizations, such as the American Bar Association, can provide valuable resources.
  2. Schedule a Consultation. Schedule an initial consultation with the selected estate planning lawyers. Many lawyers offer free or low-cost consultations to discuss needs and assess compatibility. Utilize this opportunity to inquire about their experience, qualifications, and approach to estate planning.
  3. Prepare Relevant Information. Gather necessary information and documents related to assets, financial situation, and estate planning goals. This may include details about property, investments, insurance policies, retirement accounts, and any existing wills or trusts. Providing this information will assist the lawyer in evaluating needs effectively.
  4. Communicate Objectives. Clearly communicate estate planning objectives during the consultation, including the reasons for considering a marital trust. Share intentions for asset protection, estate tax planning, and the distribution of assets to a surviving spouse and other beneficiaries. The lawyer can provide guidance based on specific circumstances and explain the benefits and implications of marital trust.
  5. Inquire about the Lawyer. Inquire about the lawyer's experience in creating marital trusts and their understanding of estate planning laws. Ask about their track record in handling similar cases and any relevant certifications or specializations. Working with a knowledgeable professional ensures that the marital trust aligns with intended objectives and complies with legal requirements.
  6. Discuss Fee Structure and Engagement. Discuss the lawyer's fee structure during the initial consultation. Understand how they bill for services, whether it is a flat fee, hourly rate, or a combination. Clarify any additional costs, such as filing fees or document preparation charges. If satisfied with the lawyer's expertise, inquire about engaging their services and the subsequent steps involved.

Key Terms for Marital Trusts

  • Marital Deduction: A tax provision that allows the transfer of assets to a surviving spouse without incurring estate or gift taxes.
  • Surviving Spouse: The husband or wife who outlives their partner and becomes the beneficiary of the marital trust.
  • QTIP Trust: Qualified Terminable Interest Property Trust, which provides income for a surviving spouse while preserving assets for other beneficiaries upon their passing.
  • Estate Tax Planning: Strategies implemented to minimize estate taxes, including the utilization of marital trusts.
  • Spousal Lifetime Access Trust (SLAT): A trust established by one spouse to benefit the other, providing asset protection and potential estate tax advantages.

Final Thoughts on Marital Trusts

A Marital trust is a powerful tool in estate planning that offers numerous benefits for couples seeking to protect and distribute their assets. It allows for the seamless transfer of wealth between spouses, provides asset protection, and can help minimize estate taxes. By establishing a marital trust, couples can ensure that their surviving spouse is financially supported during their lifetime while preserving assets for future generations. Consulting with an experienced estate planning attorney is necessary to tailor the marital trust to individual needs and ensure compliance with legal requirements. A marital trust can provide peace of mind and secure the financial well-being of both spouses and their loved ones with careful consideration and professional guidance.

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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.


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