Florida Spendthrift Trusts

What Is a Spendthrift Trust?

A spendthrift trust is any trust carrying a spendthrift clause, sometimes written as a spend thrift clause, which is a provision saying the beneficiary cannot sell, pledge or give away their interest, and their creditors cannot reach it before the trustee actually pays it out.

It is not a separate species of trust. It is a clause, and it can sit inside the revocable living trust you already have, inside an irrevocable trust, or inside a subtrust holding one child’s share. People search for an irrevocable spendthrift trust as though it were a distinct product, and what they are usually describing is an irrevocable trust that happens to contain this clause.

Practice pointer. When someone asks me for a spendthrift trust I ask who they are protecting the money from, because the answer decides whether this clause is enough on its own or whether the beneficiary needs a discretionary structure behind it. Those are different drafting jobs.

What It Does

A spendthrift clause stops the beneficiary from selling, pledging, or giving away their interest, and keeps that interest out of reach of their creditors until money is actually distributed. The trustee controls the timing and amount. It is the right tool for an heir who is bad with money, faces creditors or a lawsuit, struggles with addiction, or is too young to handle a lump sum. They benefit from the money without being able to blow it or lose it.

What It Protects Against

While assets stay in the trust, a beneficiary’s creditors, a judgment, or a divorcing spouse generally cannot reach them. The shield covers the interest before distribution; once the trustee pays money out, it is the beneficiary’s and is exposed, which is why a well-built spendthrift trust uses discretionary distributions and a trustee who can say no. The beneficiary still keeps the baseline rights every Florida trust beneficiary has, namely to be kept informed, to see accountings, and to hold the trustee to the trust’s terms.

The same comparison in words.

The Limits

Two things to know. Florida lets certain claims through even a spendthrift clause, notably child support and alimony. We followed one of those cases from the divorce settlement all the way to the garnishment order, where four family trusts were paying every household bill for a man who had stopped writing his alimony check, in the trust that paid every bill. And a spendthrift trust protects a trust you create for someone else; you cannot use one to shield your own assets from your own creditors in Florida, that is the separate, limited world of asset protection. If your beneficiary receives public benefits, we use a special-needs trust instead, so the inheritance does not disqualify them. For the full picture of how families use these clauses inside an estate plan, read our guide to protecting your child’s inheritance.

What the Florida Statute Requires

Fla. Stat. §736.0502(1) sets one condition, and a clause that misses it is not a spendthrift provision at all. A spendthrift provision is valid only if the provision restrains both voluntary and involuntary transfer of a beneficiary’s interest. Both. A clause that stops the beneficiary assigning their interest but says nothing about creditors reaching it does not qualify.

Subsection (2) then makes the drafting easy. A term providing that the interest of a beneficiary is held subject to a spendthrift trust, or words of similar import, is sufficient to restrain both. You do not need elaborate language, you need the right language.

Subsection (3) is the operative shield. A beneficiary may not transfer an interest in violation of a valid spendthrift provision, and a creditor or assignee may not reach the interest or a distribution by the trustee before receipt by the beneficiary. Read that last phrase closely, because it is where the protection ends. Money in the beneficiary’s hands is money a creditor can take.

Subsection (4) carries a limit people are surprised by. A valid spendthrift provision does not prevent the appointment of interests through the exercise of a power of appointment.

Practice pointer. I check the two-restraint requirement first on any trust somebody else drafted, because a clause that reads protectively and only restrains voluntary transfer gives a family false comfort for years.

Can a Spendthrift Trust Be Broken?

Not broken so much as bypassed, and Florida names exactly who can do it. Fla. Stat. §736.0503(2) makes a spendthrift provision unenforceable against three classes.

• A beneficiary’s child, spouse or former spouse holding a judgment or court order for support or maintenance. The statute defines "child" to include any person for whom a child support order has been entered in this or any other state.
• A judgment creditor who provided services for the protection of the beneficiary’s interest in the trust.
• A claim of the state or the United States, to the extent a state or federal law so provides.

Those claimants can obtain a court order attaching present or future distributions. But subsection (3) attaches a condition that most summaries omit, and it matters enormously. For a child, spouse, former spouse or a services creditor, that remedy applies only as a last resort upon an initial showing that traditional methods of enforcing the claim are insufficient. They have to try the ordinary routes and fail first.

Then comes the provision that decides most of these fights. Fla. Stat. §736.0504(2) provides that whether or not a trust contains a spendthrift provision, if a trustee may make discretionary distributions, a creditor of the beneficiary, including a creditor described in §736.0503(2), may not compel a distribution subject to the trustee’s discretion, nor attach or otherwise reach the interest the beneficiary might have as a result of that discretion.

Read the cross-reference. The discretionary-trust protection reaches even the exception creditors. That is why a discretionary spendthrift trust is materially stronger than one with mandatory distributions, and it is the single most useful drafting point on this page.

Avoid mandatory distribution language in a trust for a beneficiary with support obligations or creditor exposure. A clause directing the trustee to pay income quarterly converts the strongest structure Florida offers into one of the weakest.

If the Trust Was Signed Before July 2007

The Trust Code’s validity rule does not reach it. Fla. Stat. §736.0502(1) closes by saying the subsection does not apply to any trust the terms of which are included in an instrument executed before the effective date of this code, which was July 1, 2007.

A federal bankruptcy court sitting in Florida applied that carve-out directly. In In re Ciano, 433 B.R. 431 (Bankr. N.D. Fla. 2010), the trust had been executed in 2000, and the court said that because the Trust Code’s spendthrift provisions explicitly do not apply to an instrument executed before the effective date, it had to look to pre-Trust-Code law to determine the validity of the spendthrift provision. On that older Florida common law the provision satisfied both prongs anyway, so the outcome held, but the route was entirely different.

That decision is a federal bankruptcy court reading Florida law, which makes it persuasive rather than binding on a Florida court.

Practice pointer. The date on the signature page is the first thing I look at. A trust from the 1990s or early 2000s is not governed by the statute everybody quotes, and I would rather know that before advising on it than after.

How to Set Up a Spendthrift Trust in Florida

Four decisions, and only the first is about the clause itself.

1. Where it lives. Usually a subtrust inside the revocable living trust you already have, holding one beneficiary’s share rather than paying it out. Sometimes a standalone irrevocable trust.
2. Whether distributions are discretionary. The §736.0504 point above. This decides how strong the structure actually is.
3. Who the trustee is. A beneficiary who can write themselves cheques is not being protected from much. An independent trustee holding real discretion is what makes the discretionary protection mean something.
4. What happens when the beneficiary dies. The clause protects an interest while it exists. Where that interest goes afterward is a separate drafting decision and it is easy to leave unanswered.

It is part of the Complete Trust Plan at $3,200 when built into a new plan, rather than a separate product with its own fee.

Can I Set One Up for Myself?

Clients are often confused about who a spendthrift clause protects, and ask me, "Can I put my own money in one so my creditors cannot get at it?" In Florida, no. The clause protects a beneficiary’s interest in a trust somebody else created for them. A trust you create for your own benefit is a self-settled trust, and Florida does not give it that shield. I have had this conversation with people who were told otherwise by a promoter, and the correction is better heard in my office than in a deposition.

What Florida Courts Have Held

Everything above is the plain-English version. If you want the law itself, we annotate the governing sections of the Florida Trust Code one at a time, with the statute quoted in full and the courts’ own words alongside it.

• Fla. Stat. 736.0504, discretionary trusts. The protection side. In 2010 a Florida appellate court refused to let a creditor holding a judgment of more than one million dollars reach a discretionary trust, even after the trial judge found the beneficiary controlled the trust completely and the trustee rubber-stamped him. The reason is a single sentence about where a court has to look, and it is the sentence that decides most of these fights.
• Fla. Stat. 736.0503, the exceptions. The other side. A child, spouse, or former spouse holding a support order can garnish the distributions a trustee actually makes, including payments sent to third parties on the beneficiary’s behalf. In 2019 a Florida appellate court applied that to a special needs trust and a child support arrearage. There is a last resort condition attached, and it is the part most people skip.
• Fla. Stat. 736.0505, your own trust and your creditors. The one that catches people out. A spendthrift clause does nothing against the creditors of the person who created the trust, and in a revocable trust the property answers to them exactly as if it had never been transferred. No Florida appellate court has construed it.
• The Florida Trust Code, chapter 736. How the whole chapter is organized, and which sections Florida’s appellate courts have never construed at all.

Frequently Asked Questions

What I See in These Files

In 14 years of law practice the spendthrift clause is the provision clients most often believe they have and most often do not. I read trusts drafted elsewhere where the protective language restrains the beneficiary from assigning an interest and says nothing at all about creditors reaching it, which under Fla. Stat. §736.0502(1) means there is no valid spendthrift provision, only the appearance of one.

I also litigate trust matters after they fail, which enhances the practice of drafting them, and the pattern I meet is a trust that was strong on paper and mandatory in its distributions. A clause directing the trustee to pay income quarterly hands a creditor a schedule. The discretionary version hands them nothing to attach, and under §736.0504(2) that holds even against the exception creditors. Avoid accepting a spendthrift clause as protection without reading whether the distributions behind it are discretionary, and avoid assuming a trust signed before July 2007 is governed by the statute everyone quotes, because it is not.

Sources of Law

• Fla. Stat. §736.0502 (annotated)(1) (valid only if it restrains both voluntary and involuntary transfer, and the carve-out for instruments executed before the effective date of the code); (2) (“held subject to a spendthrift trust, or words of similar import” is sufficient); (3) (no transfer by the beneficiary, and no creditor reach of the interest or a distribution before receipt by the beneficiary); (4) (does not prevent appointment through the exercise of a power of appointment). History, s. 5, ch. 2006-217; s. 12, ch. 2007-153. Retrieved 2026-09-14.
• Fla. Stat. §736.0503(1) (definition of “child”); (2)(a) to (c) (the three classes against which a spendthrift provision is unenforceable); (3) (attachment of present or future distributions, and the last-resort condition requiring an initial showing that traditional methods of enforcing the claim are insufficient). History, s. 5, ch. 2006-217; s. 13, ch. 2007-153.
• Fla. Stat. §736.0504(2) (whether or not the trust contains a spendthrift provision, a creditor, including one described in §736.0503(2), may not compel a discretionary distribution or attach the interest); (3) (ascertainable standard where the beneficiary serves as trustee); (4) (a beneficiary may still sue the trustee for abuse of discretion). History, s. 5, ch. 2006-217; s. 14, ch. 2007-153.
• Fla. Stat. §736.0505 (creditors’ claims against the settlor; a spendthrift clause does not shield a self-settled trust).
• In re Ciano, 433 B.R. 431 (Bankr. N.D. Fla. 2010) (Pensacola Division, decided August 6, 2010), read in full from the opinion text (⚠ a federal bankruptcy court construing Florida law, so persuasive and not binding on a Florida court): the Trust Code’s spendthrift provisions do not apply to an instrument executed before the code’s effective date, so for a trust executed in 2000 the court applied pre-Trust-Code Florida law to determine validity.
• Also construing §736.0502: Zlatkiss v. All America Team Concepts, LLC, 125 So. 3d 953 (Fla. 5th DCA 2013) and Miller v. Kresser, 34 So. 3d 172 (Fla. 4th DCA 2010), both on subsection (3); In re Rogove, 443 B.R. 182 (Bankr. S.D. Fla. 2010), subsection (3) in a footnote.
• ⚠ Stated as the limit of our own review. A section-number search of the case corpus run 2026-08-13 returned four Florida decisions touching §736.0502. We located no decision, state or federal, deciding whether particular trust language satisfies the two-restraint requirement for an instrument executed after July 1, 2007. That narrower question appears to be open, and the search was a section-number search rather than an exhaustive one.

Updated on September 14, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law, not legal advice. Do not send confidential information until we have agreed to represent you.