Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, December 23, 2016

Equitable Distribution for a Couple's Irrevocable Trust?

Irrevocable trustIn Nelson v. Nelson, a husband established an irrevocable trust for the benefit of his wife and children. Eventually, the couple ended up getting a divorce. Under the law in most states, in the event of a divorce, marital property is equitably distributed among the couple. The trial court in this case ordered the trust assets to be distributed equitably. On appeal, the husband relied on Florida Trust Code § 736.04113, asserting that because the estate planning purpose of the trust was no longer necessary, the trial court was allowed to modify the trust and equitably distribute them. However, the appellate court concluded that this section of the code did not apply because neither the trustee nor a beneficiary petitioned for modification, which disallowed the court from ordering equitable distribution of the trust assets. The case illustrates a good lesson for the unintended consequences of estate planning and asset protection strategies relying on inter vivos transactions. 

See Jeffrey Skatoff, Is an Irrevocable Trust for Wife, Settled by the Husband, Subject to Equitable Distribution, Florida Probate Lawyers, December 20, 2016. 



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In Nigeria, the usual principle of sharing of matrimonial property is the measure of contribution of each spouse into the acquisition of such property. In this part of the world, women do not usually get as much share as they want or that can sustain them after divorce because many women/wives are not economically buoyant to make monetary contribution to the family property in the first place. For me, it appears the principle of equitable distribution of matrimonial property, as used in most states in the US, is far better and more favourable to women. Though the Nigeria's Matrimonial Causes Act also talks about fair and equitable settlement of matrimonial property, its application in reality and practice is far from being fair or equitable.

Posted by: Kehinde Adegbite | Dec 25, 2016 5:52:14 AM

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