Trusts and Postnups in Florida: Two Tools, Two Very Different Jobs
When happily married people start thinking about protecting their assets, they usually picture one of two things: a trust or a postnuptial agreement. Many assume they do roughly the same thing. They don’t. A trust holds, manages, and transfers property, while a postnuptial agreement defines who owns that property if the marriage or a life comes to an end. Couples who sit down with Orlando postnuptial agreement attorneys often discover that real protection comes from using both, with each doing the job it was built for.
Why a Trust Alone Rarely Shields Assets in a Divorce
Many people believe a trust puts property out of a spouse’s reach. In a Florida divorce, that usually isn’t true. Courts classify assets as marital or nonmarital based on when and how they were acquired, not on whose name is on the title. If marital earnings fund a trust, the assets inside it generally stay marital.
Revocable trusts are the weakest shield of all. Because the person who created the trust can take the property back at any time, the law largely treats it as still belonging to that person. The same is true at death. Under Florida Statutes section 732.2035, revocable trust property counts toward the elective estate, so a surviving spouse can still claim a share of it.
Where a Postnuptial Agreement Does the Heavy Lifting
A postnup can do something a trust cannot: change the legal character of property. Under Florida Statutes section 61.075, assets excluded from the marital estate by a valid written agreement of the spouses are treated as nonmarital. That gives couples a way to settle ownership of things like:
- A business one spouse started before the marriage, along with its growth in value
- An inheritance that might otherwise get mixed into joint accounts
- Real estate or investments meant to pass to children from a prior relationship
- Elective share and homestead rights that would otherwise arise at death
The trade-off is disclosure. Florida Statutes section 732.702 requires each spouse to make a fair disclosure of their estate when a waiver of spousal rights is signed after marriage, something the statute does not require for agreements signed before the wedding. An agreement signed without full financial transparency, or under pressure, becomes an easy target later.
How the Two Work Together
Think of the postnup as the rulebook and the trust as the vehicle. The agreement establishes that a particular asset is nonmarital and that the other spouse waives certain rights to it. The trust then holds that asset, keeps it out of probate, and directs where it goes, whether to children, to a surviving spouse for life, or to a successor in a family business.
Without the agreement, the trust may hold property a court still considers marital. Without the trust, ownership is protected, but the asset still faces probate and less control over how it passes on. Both documents tend to hold up best when signed during a calm stretch of the marriage, with each spouse represented by separate counsel.
Build a Plan That Holds Up
If you’re weighing a trust, a postnup, or both, we can review what you own, how it has been titled over the years, and where the gaps are. At Arwani Law Firm, PLLC, we work with married couples who would rather settle these questions now than fight over them later. Reach out to us to schedule a consultation.
Source:
flsenate.gov/Laws/Statutes/2025/732.2035