Revocable Trust

Revocable Trust

When a couple that has a revocable trust, and a spouse dies, does one half of the trust become irrevocable, if so, how long? In the trust it states nothing of this, instead it says that if one of the spouses dies the surviving spouse becomes sole trustee of the trust. Does this mean that the surviving spouse can revoke the trust if he wishes.


It sounds like you might have a joint revocable living trust which is something used in community property states. Let's explain some of what this means and make a few comments on this. However, you'll need to consult an estate planner in your state and have the document reviewed to see what is really going on. With that caveat, perhaps the following will be of some help (but see a lawyer):

  • A revocable trust is a trust that can be changed, in contrast to a trust that cannot be changed. The title can be a bit of a misnomer in that if you you die your revocable trust will become irrevocable. Further, many such trusts have assets transferred after death into other trusts (by pass, marital, etc.) that are also revocable.
  • A joint revocable trust is a single revocable trust that spouses create together. Unfortunately its not a technique that folks outside of community property states are as familiar with.
  • A community property state is a state whose laws treat all monies earned during a marriage, and property purchased as owned 1/2 by each spouse (and oversimplification).
  • A joint revocable trust might seek to acheive a step up in tax basis on all the property in the trust on the death of the first spouse. It's not clear that this will be a successful technique. A "step up in basis" is that the "cost" for tax purposes of an assets is increased on death to the fair value of the asset (capital gains disappears).
  • Your question indicated that on the first death 1/2 of the trust becomes irrevocable. If that were the case 1/2 would not be permitted to be changed, and 1/2 would.
  • Your trust might provide that 1/2 of the assets are paid to a by pass trust that becomes irrevocable on your spouse's death, and the remaining 1/2 are either paid to you or continue in a marital trust or revocable trust that you control. Again, without looking at the trust document its a bit tough to tell.

Not meaning to be vague buy you need to get a local estate attorney to review the trust document to confirm what the result actually is.

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