Protecting Trust Assets from a Divorcing Spouse

When spouses divorce, they may be surprised to discover that certain trust assets may not be protected from each others' reach. It is often difficult to find a bullet-proof trust, holding assets firmly and securely away from the divorcing spouse. In Massachusetts, the divorcing couple's assets are placed into a pot, known as the 'marital estate,' and the probate court judge then considers a variety of factors in dividing the marital estate between the two spouses. When dealing with trusts, or any asset for that matter, the primary goal is to keep it out of the marital estate. That said, even if an asset, such as a trust, is added to the marital estate, it does not necessarily mean that it will be divided between the spouses. There are a number of factors to keep in mind when creating or analyzing trusts so as to keep such trusts characterized as separate rather than marital property. Understanding these factors is important not only in the context of the spouses' own divorce, but also with respect to planning for the protection of certain assets long before divorce is an issue, both in the spouses' own estate plans as well as in the estate plans of their parents and other relatives. The following discussion is based on Massachusetts case law, and, while many of the principles are applicable in other jurisdictions, local law should always be consulted.