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Writer's pictureKimberly Hegwood

What is a Marital Trust and How does it work in Texas?

Marital Trust Lawyer
Benefits to a Marital Trust

A marital trust is a legal tool often used in estate planning to ensure that assets are managed and distributed according to a couple's wishes after one spouse passes away.


Understanding how a marital trust works can help families plan their financial futures and protect their assets for generations to come.


In this blog post, we’ll dive into what a marital trust is, the different types, its benefits, and the specific considerations under Texas law.


What is a Marital Trust?


A marital trust, also known as an "A" trust, is a fiduciary arrangement established to provide financial security to a surviving spouse and eventually benefit the couple's heirs, such as children or grandchildren. When one spouse dies, their assets are transferred into the trust, and the surviving spouse is entitled to receive income generated from these assets.


In some arrangements, the surviving spouse can also access the trust's principal. Upon the death of the surviving spouse, the remaining assets in the trust are passed on to the designated beneficiaries.


Key Benefits of a Marital Trust


  1. Avoidance of Probate: One of the primary benefits of establishing a marital trust is that it allows the couple's heirs to avoid the probate process. Probate can be a lengthy and costly legal procedure that involves validating a will and distributing the deceased's assets. By placing assets in a marital trust, they are automatically managed according to the trust's terms, bypassing the need for probate.

  2. Reduction of Estate Taxes: Marital trusts are designed to take advantage of the unlimited marital deduction, a provision that allows spouses to transfer assets to each other without incurring estate taxes. However, it is important to note that while the transfer of assets to a surviving spouse is tax-free, the remaining assets in the trust may be subject to estate taxes when the second spouse dies. To mitigate this, a marital trust is often used in conjunction with a credit shelter trust (or "B" trust), which can help minimize estate taxes for the heirs.

  3. Protection of Assets: A marital trust can provide significant protection for assets, particularly in situations where there are children from previous marriages. By establishing a marital trust, a spouse can ensure that their assets will ultimately go to their children rather than being transferred to a new spouse if the surviving spouse remarries.


Types of Marital Trusts


There are three main types of marital trusts, each serving a specific purpose and offering different levels of flexibility and control:


General Power of Appointment Trust


This type of trust gives the surviving spouse broad powers to decide how the assets in the trust will be distributed upon their death. The surviving spouse can choose to allocate the remaining assets to any beneficiaries they wish, including their own children or other family members.


Qualified Terminable Interest Property (QTIP) Trust


A QTIP trust allows the trustor to maintain control over the final distribution of assets after the surviving spouse's death. The surviving spouse receives income from the trust during their lifetime, but the principal is preserved for the benefit of the ultimate beneficiaries designated by the first spouse to die. This type of trust is particularly useful in blended families, where there are children from previous marriages.


Estate Trust


An estate trust provides income to the surviving spouse during their lifetime, with the remaining assets going to the heirs upon the spouse’s death. Unlike the QTIP trust, the surviving spouse does not have control over the trust principal. This type of trust is often used when the trustor wants to ensure that assets are managed conservatively for the benefit of the spouse and then passed on to the designated heirs.


Marital Trusts and Texas Law


In Texas, marital trusts are governed by both federal and state laws. It is important to understand how these laws might affect the creation and administration of a trust:

  1. Community Property Laws: Texas is a community property state, meaning that most assets acquired during a marriage are considered jointly owned by both spouses. When creating a marital trust, couples must carefully consider which assets will be included and ensure that they comply with Texas community property laws.

  2. Homestead Exemption: Texas offers strong protections for homestead properties, which are primary residences. A marital trust can include a homestead, but specific provisions must be made to comply with Texas homestead laws, which can affect the ability to sell or transfer the property.

  3. Spousal Rights and Elections: Texas law provides certain rights to surviving spouses, including the right to remain in the marital home and to a portion of the deceased spouse’s estate, even if not explicitly included in a will or trust. When drafting a marital trust, it is important to ensure that these rights are respected and that the terms of the trust do not inadvertently violate state law.


How to Set Up a Marital Trust in Texas


To establish a marital trust in Texas, it is advisable to consult with an experienced estate planning attorney who understands both federal tax laws and Texas state laws. The process generally involves the following steps:

  1. Drafting the Trust Document: The first step is to draft a comprehensive trust document that outlines the terms and conditions of the trust, including the designation of the trustee, the beneficiaries, and how the assets will be managed and distributed.

  2. Transferring Assets to the Trust: Once the trust document is completed, the next step is to transfer assets into the trust. This might include bank accounts, investment portfolios, real estate, and other valuable property.

  3. Naming a Trustee: The trustee is responsible for managing the trust’s assets and ensuring that the terms of the trust are followed. The surviving spouse is often named as the trustee, but it is also common to name a third-party trustee, such as a trusted family member or financial institution, to manage the trust.

  4. Regular Review and Updates: It is important to review and update the trust regularly to ensure that it continues to meet the couple’s goals and complies with any changes in the law. Changes in family circumstances, such as the birth of new children or the acquisition of new assets, may also necessitate updates to the trust.


Conclusion


A marital trust can be an invaluable tool for protecting assets, reducing estate taxes, and providing for a surviving spouse and future generations. By understanding the different types of marital trusts and how they function under Texas law, couples can make informed decisions that align with their long-term financial and estate planning goals. If you are considering setting up a marital trust, consulting with an experienced estate planning attorney can help you navigate the complexities of trust law and ensure that your assets are protected for your loved ones.


By understanding and implementing a marital trust tailored to your unique family dynamics and financial situation, you can achieve peace of mind knowing that your estate will be handled according to your wishes, providing security and support for your loved ones both now and in the future.


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