BAM Family Law Divorce

Trusts In A Divorce Case

By Kyle McFarlane

You may have lived with a spouse who is part of a wealthy family, and you enjoy a certain lifestyle because of that. But when you get divorced, the court is only able to divide the marital assets—separate property is set aside to the spouse who owns it, and some things, like beneficiary interests in family trusts, may not be considered to be property at all. How do you know whether your spouse’s (or your own) interest in a trust will be considered property? What portion might be marital or separate?

Unfortunately, the answer is not a simple one and instead depends entirely upon the facts of each case and the specific terms of each trust. For instance, whether you or your spouse have a property interest in a trust may depend upon the powers of the trustee to invade the trust corpus and/or whether you or your spouse have a vested remainder interest in the trust corpus, as opposed to a lifetime “support” allowance.

This can seem very unfair, where your spouse might be treated as having no property interest despite having the right to receive all the money he or she could dream of during for a lifetime, but with no right to any portion of the trust res at death. That’s why trusts are tricky: what you see (and experience) isn’t necessarily what you will get during the divorce.

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The information in this post is not legal advice—it is only legal information. To obtain legal advice by hiring the attorneys of Broxterman Alicks McFarlane PC as your counsel, please contact the firm at or 303-331-6432.

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