Bucelo Diaz Law, PLLC has drafted joint trusts for married couples in Broward, Miami-Dade, Collier, and Marion counties. Alexis Bucelo Diaz, Esq., LL.M., holds a Master of Laws in Estate Planning from the University of Miami and has more than 15 years of focused experience in Florida estate planning and probate law. She is a member of WealthCounsel, which keeps the firm’s trust drafting aligned with current legal standards.
A joint trust in Florida is a single trust instrument that both spouses create together. It is one of the most efficient estate planning structures available to married couples in this state, and it is the only structure that allows a couple to access the unique federal tax advantage created by the Florida Community Property Trust Act (FS §736.1501). This page explains what a Florida joint trust is, how it works at each stage of a marriage, whether the community property election makes sense for your assets, and when a different structure may serve your family better.
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Schedule a free 30-minute consultation with Alexis to discuss whether a joint trust fits your estate plan. We meet in person at our Weston, Ocala, or Naples offices, or via Zoom statewide.
What Is a Joint Trust in Florida?
A joint trust is a single revocable trust agreement signed by both spouses. Each spouse is both a co-grantor (the person creating the trust) and a co-trustee (the person managing it). Together, they transfer their assets into one trust instrument rather than maintaining two separate documents. The trust is governed by the Florida Trust Code, Chapter 736 of the Florida Statutes, which sets the rules for trust creation, administration, amendment, and termination across the state.
It is important to distinguish a joint trust from a revocable living trust in Florida created by one person alone. A single-grantor revocable trust accomplishes probate avoidance for one person’s assets. A joint trust does the same for both spouses under one roof. Both are fundamentally different from a joint tenancy with right of survivorship (JTWROS), which is a property-law arrangement that applies asset by asset rather than through a comprehensive trust document.
The alternative to a joint trust is two separate trusts, one for each spouse. Each spouse controls their own trust, names their own beneficiaries, and manages their own assets independently. Separate trusts are more complex to administer and fund, but they offer certain advantages in situations involving blended families or meaningfully different asset pictures between spouses. The right answer depends entirely on your family structure, your asset profile, and your goals.
How a Florida Joint Trust Works
During Both Spouses’ Lifetimes
While both spouses are living, the joint trust typically operates like a single-grantor revocable trust, but with two co-trustees. Both spouses can use, manage, and invest trust assets as if they owned them outright. They can add assets to the trust, remove assets, change beneficiaries, and amend the trust terms. Under FS §736.0602, co-grantors of a revocable trust may revoke or amend the trust by mutual agreement. The trust document will specify whether one spouse can act unilaterally on specific decisions or whether certain amendments require joint consent.
Funding the trust is a critical step. Real property must be transferred by deed into the trust’s name. Financial accounts must be retitled. Personal property of value is assigned by a separate schedule. An unfunded trust provides no probate avoidance benefit. Most couples work with their attorney and financial institutions to complete funding at or shortly after signing. Transfers between spouses or to a trust for the benefit of a spouse are generally not taxable events under IRC §1041, which allows couples to restructure ownership without triggering capital gains.
When One Spouse Dies
At the first spouse’s death, the trust typically splits or becomes partially irrevocable, depending on how it is drafted. The assets that belonged to the deceased spouse may be locked into a separate sub-trust for the benefit of the surviving spouse and named beneficiaries, while the surviving spouse’s own assets may remain in a revocable portion. This bifurcation structure preserves the decedent’s estate plan while still giving the survivor access to the assets they need.
The surviving spouse continues as sole trustee and manages trust assets without court involvement. There is no probate process for assets held inside the trust, because the trust itself does not die. A successor trustee named in the trust document steps in if the surviving spouse later becomes incapacitated. This is one of the most practical reasons couples choose a joint trust: it eliminates two separate probate proceedings (one at each death) and provides continuity of management if either spouse becomes unable to act.
When the Second Spouse Dies
At the second death, the trust becomes fully irrevocable. The successor trustee steps in and administers the remaining trust assets according to the trust document. There is no probate. The successor trustee identifies the named beneficiaries, values and liquidates or distributes trust assets as directed, pays valid debts and expenses, and closes the trust. Beneficiaries typically receive their inheritance faster and with more privacy than they would through the probate courts.
The Florida Community Property Trust Act: A Powerful Tax Option
This is the section of a Florida joint trust that no national platform or out-of-state law firm addresses, because it is unique to Florida law.
Florida is not a community property state. Under the default rules that apply to Florida married couples, assets are owned as either separate property or marital property under common law, but there is no automatic “community property” treatment for federal tax purposes. This matters for one specific and significant reason: the federal step-up in basis rule.
Under IRC §1014, when someone dies, heirs generally inherit assets at their fair market value as of the date of death, rather than at the original purchase price. This is the “step-up in basis.” It can eliminate capital gains tax on decades of appreciation. In a common-law state like Florida (under its default rules), only the decedent’s half of jointly held property gets stepped up when the first spouse dies. The surviving spouse’s half retains its original, lower cost basis.
Under IRC §1014(b)(6), the rule is different for community property. Both halves of community property may receive a full step-up to fair market value at the first spouse’s death, not just the decedent’s share. This is confirmed in IRS Publication 555 (December 2024), which states: “If you own community property and your spouse dies, the total fair market value of the community property, including the part that belongs to you, generally becomes the basis of the entire property.”
Here is why that matters in practice. Consider a couple who purchased stock for $200,000 that is now worth $1,000,000. In a common-law state, if one spouse dies, only the decedent’s $500,000 share gets stepped up to fair market value. The survivor’s $500,000 share retains its old basis. If the survivor sells the stock, they may owe capital gains tax on $400,000 of appreciation in their half. Under a qualifying community property trust, both halves can potentially be stepped up, meaning the survivor may be able to sell the stock with little or no capital gains exposure. This is not a guarantee. Whether this outcome applies to your specific assets depends on the nature of the assets, how the trust is drafted, and other circumstances an attorney must analyze.
The Florida Community Property Trust Act (FS §736.1501 through §736.1512, enacted 2021) creates an opt-in mechanism that allows Florida married couples to elect community property treatment for assets held in a qualifying trust. This election is not automatic. The trust document must explicitly state that the assets are held as community property within the meaning of the Act. The trust must also meet the requirements of FS §736.1503, which include: (1) an express declaration identifying the trust as a community property trust; (2) at least one qualified trustee who is either a Florida resident or a Florida-authorized trust company; (3) signatures by both spouses with proper execution formalities; and (4) a mandatory capital-letter warning disclosure at the beginning of the trust document addressing the consequences of the election.
The definitions applicable to the Act, including the meaning of “community property,” “qualified trustee,” and “settlor spouses,” are set out in FS §736.1502.
Two critical planning notes apply. First, retirement accounts such as IRAs and 401(k)s cannot be transferred into a trust without triggering immediate distribution requirements under federal law. These accounts stay outside the trust regardless of the community property election. Second, the step-up benefit under IRC §1014(b)(6) and its interaction with the Florida Community Property Trust Act are areas where the law and IRS guidance continue to develop. For a full analysis of how the step-up in basis works at death, and how community property trusts fit into that framework, see our dedicated page on that topic.
We review each couple’s asset list to determine whether the community property election makes sense for their specific holdings. Not every asset type benefits equally from this election, and some couples’ circumstances may point toward a different structure entirely.
Joint Trust vs. Separate Trusts: Which Is Right for Your Marriage?
When a Joint Trust Works Well
A joint trust is well suited for couples in long, stable marriages where assets have been commingled over the years and the beneficiary picture is straightforward. If both spouses intend to leave their estate to their children from this marriage in equal shares, a joint trust keeps the plan simple, reduces administrative overhead, and provides unified asset management. Couples who want to use the Florida Community Property Trust Act election under FS §736.1501 must use a joint trust structure. The community property election is not available for individually held assets or assets held in separate trusts.
When Separate Trusts May Be the Better Choice
Separate trusts are frequently the better structure in blended families. When either spouse has children from a prior relationship, a joint trust can create significant tension. At the first death, the surviving spouse may have broad authority over trust assets, which can put the first spouse’s children in a vulnerable position depending on the trust terms. Separate trusts allow each spouse to direct their own assets to their own children with certainty.
Separate trusts also make sense when one or both spouses hold significant premarital assets they want to keep distinct. An irrevocable trust in Florida may be worth considering when asset protection is a priority, since a joint revocable trust generally does not shield assets from either spouse’s creditors during their lifetimes. Different beneficiary intentions between spouses are another clear signal that separate trusts, not a joint trust, are the right starting point.
The honest answer is that there is no universal answer. The right structure depends on who your family is, what you own, and what you want to happen when you are gone.
Joint Trust vs. Joint Tenancy With Right of Survivorship
Many Florida couples hold real estate in joint tenancy with right of survivorship (JTWROS). When one owner dies, their interest passes automatically to the survivor without probate. This sounds similar to what a joint trust accomplishes, but the two structures operate very differently.
Joint tenancy applies property by property. You must re-title every piece of property to create JTWROS ownership. A joint trust covers all assets transferred into it under one document, which is simpler to manage and update. More importantly, JTWROS provides no ability to customize distribution instructions. When the surviving joint tenant dies, the property passes to whoever was named as beneficiary or to the survivor’s probate estate. A joint trust allows for detailed, conditional distributions to named beneficiaries of any description.
The most significant difference for tax planning purposes is that JTWROS assets cannot receive the Florida Community Property Trust Act election under FS §736.1501. Assets held in JTWROS remain common-law property for federal tax purposes. Only the decedent’s half can receive a stepped-up basis under IRC §1014. For couples with significant appreciated assets, this distinction alone can be worth a careful conversation with an estate planning attorney. For a full comparison of how basis treatment differs across ownership structures, see our page on how the step-up in basis works at death.
Federal Estate Tax and the Unlimited Marital Deduction
For most married couples in Florida, federal estate tax is not an immediate concern because transfers between spouses are generally tax-free under IRC §2056, the unlimited marital deduction. When one spouse dies and leaves everything to the surviving spouse, no federal estate tax is owed at that point. The federal estate tax exposure arises at the second death, when assets pass outside the marriage.
For couples whose combined estate may approach or exceed the federal exemption threshold, a joint trust can be structured with A-B or A-B-C provisions that preserve both spouses’ individual exemption amounts. Portability rules under current law also allow a surviving spouse to use the unused portion of the deceased spouse’s exemption (the Deceased Spousal Unused Exclusion Amount, or DSUEA), which has simplified planning for many couples. The federal exemption amount has changed significantly in recent years due to legislation, and it may change again. For the current exemption figure and an explanation of how it applies to Florida residents, see our page on Florida estate tax and the federal exemption. We do not hardcode this figure here because it is subject to legislative change.
How We Help Florida Couples Create a Joint Trust
The process at Bucelo Diaz Law begins with a free 30-minute initial consultation. We review your current asset picture, your family structure, and your goals for your estate. From that conversation, we can advise whether a joint trust, two separate trusts, or a hybrid approach best serves your situation. If a community property trust election under FS §736.1501 is appropriate, we draft the required election language and mandatory disclosure provisions into the trust document from the start.
After the trust is signed, we help you fund it. Funding means re-titling real property by deed, retitling financial accounts, and completing the transfer of other assets into the trust’s name. A trust that is not funded provides no probate avoidance benefit. We also coordinate the ancillary documents every solid Florida estate plan includes: a pour-over will, a durable power of attorney, and healthcare directives.
Alexis holds an LL.M. in Estate Planning from the University of Miami School of Law and has more than 15 years of focused experience in Florida estate and probate law. Her WealthCounsel membership keeps the firm’s trust drafting aligned with current legal standards. We work with couples in our Weston, Ocala, and Naples offices, and with Florida residents statewide via Zoom.
Have questions about your specific situation?
Contact Bucelo Diaz Law to schedule a free 30-minute consultation. We meet in person at our Weston, Ocala, or Naples offices, or via Zoom statewide.
Frequently Asked Questions About Florida Joint Trusts
What is a joint trust in Florida?
A joint trust in Florida is a single revocable trust created by two spouses, both of whom serve as co-grantors and co-trustees. Both spouses transfer their assets into one trust instrument rather than creating separate trusts. The trust avoids probate for those assets when either spouse dies, because trust assets pass outside the probate estate under the Florida Trust Code, Chapter 736 of the Florida Statutes.
How is a joint trust different from two separate trusts?
With a joint trust, one trust document governs both spouses’ assets. Separate trusts give each spouse independent control over their own assets and beneficiaries. Joint trusts are simpler to manage and fund, and can qualify for community property treatment under FS §736.1501. Separate trusts offer more flexibility in blended families or when spouses have meaningfully different beneficiary intentions. The right structure depends on the couple’s specific family situation and asset picture.
Does Florida allow community property trusts?
Yes. Florida is not a community property state by default, but the Florida Community Property Trust Act (FS §736.1501, enacted 2021) allows married couples to elect community property treatment for assets held in a qualifying trust. The trust document must include an explicit election and meet the requirements of FS §736.1503. Not every joint trust is a community property trust. The election must be intentional and properly drafted.
How does the Florida Community Property Trust Act affect the step-up in basis at death?
Under IRC §1014(b)(6), both halves of community property may receive a stepped-up basis at the first spouse’s death, compared to only the decedent’s 50% share in a common-law state. This can potentially reduce or eliminate capital gains tax when a surviving spouse later sells an appreciated asset. To qualify, the trust must comply with FS §736.1501 and the assets must have been held as community property. Whether this benefit applies to your specific assets requires analysis by a Florida estate planning attorney.
Can we change our joint trust after it is signed?
Yes, while both spouses are living and the trust remains revocable. Under FS §736.0602, co-grantors of a revocable trust can amend or revoke the trust by agreement. Once the first spouse dies, the trust typically becomes at least partially irrevocable, limiting what the surviving spouse can change. Your trust document will specify the exact amendment and revocation rights for each phase of the trust’s life.
What happens to a joint trust when one spouse dies?
At the first death, assets typically pass to the surviving spouse without probate. The trust document may become partially or fully irrevocable, depending on how it is drafted. The surviving spouse continues as sole trustee and retains use and control of the trust assets during their lifetime. A successor trustee steps in if the surviving spouse becomes incapacitated. The second death triggers final distributions to named beneficiaries per the trust terms.
Is a joint trust better than joint tenancy with right of survivorship?
They accomplish different things. Both avoid probate on the assets they cover. A joint trust is more comprehensive: it holds all your assets under one document, allows customized distribution instructions, and can include the Florida Community Property Trust Act election for potential tax benefits. Joint tenancy applies property by property and does not allow for the FS §736.1501 election or complex beneficiary arrangements. For most couples with more than one or two assets, a joint trust provides more flexibility and potential tax advantages.
Should we use a joint trust if we have children from prior marriages?
In most cases, a joint trust is the wrong structure for blended families. A joint trust combines both spouses’ assets under one document, which can create serious tension when each spouse wants to ensure their own children are protected. If one spouse dies first, the surviving spouse could potentially change the trust to reduce or eliminate distributions to the first spouse’s children, depending on how the trust is drafted. Separate trusts, or a joint trust with carefully carved-out sub-trusts for each spouse’s separate share, are typically more appropriate for blended families. This is a situation where the drafting details matter significantly, and an attorney analysis is essential before choosing a structure.
Let’s build a plan that fits your family.
Schedule a free 30-minute initial consultation with Alexis. We help Florida married couples in Weston, Ocala, Naples, and statewide via Zoom.
About the Author
Alexis Bucelo Diaz, Esq., LL.M. is the founding attorney of Bucelo Diaz Law, PLLC. She holds a Master of Laws (LL.M.) in Estate Planning from the University of Miami School of Law and has more than 15 years of focused experience in Florida estate planning, probate, and real estate law. She is admitted to the Florida Bar and the U.S. District Court for the Southern District of Florida. Florida Bar #86918. Selected to Super Lawyers Rising Stars in 2025. Last reviewed: 2026-05-28.