When you make a living trust, the people currently in your life are usually chosen as the beneficiaries. You can amend your named beneficiaries by following the procedures outlined in the trust document. Your trust doesn’t automatically update if you divorce or remarry. If you don’t change your trust, your former spouse stands to legally inherit your assets instead of your current spouse.
Living Trust Parties
A revocable living trust and an irrevocable living trust must have a grantor, a trustee and at least one beneficiary to be valid. The person creating the trust is the grantor, or settlor. If you and your first spouse created the trust together, the two of you are co-grantors or co-settlors. The trustee is the person you select to manage your trust assets. You can name yourself as the trustee or select someone else to serve. The beneficiaries are the people named to inherit your assets when you die.
Revocable Living Trust
With a revocable living trust, only the grantor has the power to change the trust. If you are the sole grantor, you don’t need the consent of the trustee or the beneficiaries. You can change your trust to eliminate a former spouse and name your present spouse as the new beneficiary. If you and your former spouse are both co-grantors, your former spouse may not agree with your decision to eliminate him as a beneficiary. You may have to bring the matter before a judge to resolve the dispute.
Irrevocable Living Trust
When you create an irrevocable living trust, you surrender control of your assets to the trustee. Even though you are the grantor, you lose your right to change the trust beneficiaries at will. You must get the written consent of all the beneficiaries to name your new spouse as a beneficiary without going to court. If your former spouse is a co-grantor or a beneficiary and won’t agree to the change, you’ll have to file a petition in court. The judge determines whether you can remove your former spouse and name your current spouse as a beneficiary.
Avoid Former-Spouse Claims
Your legal adviser/attorney can help you eliminate the need to change your trust should you divorce your spouse. The trust can contain language stating that a divorced spouse will be treated as though she is deceased. This prevents her from receiving your assets after the divorce is final without having to amend your trust. If you have an irrevocable trust, this also eliminates the problem of convincing your co-grantor former spouse and the trust beneficiaries to eliminate your former spouse as a trust beneficiary.
Based in St. Petersburg, Fla., Karen Rogers covers the financial markets for several online publications. She received a bachelor's degree in business administration from the University of South Florida.