Spendthrift Trusts in Florida

A spendthrift trust in Florida is an irrevocable trust containing a clause that prevents a beneficiary’s creditors from reaching the trust assets before the trustee distributes them. Florida Statutes § 736.0502 recognizes spendthrift provisions as enforceable creditor protection, blocking both voluntary and involuntary transfers of the beneficiary’s interest.

Spendthrift protection works alongside a second, separate mechanism: discretionary distribution authority under § 736.0504. A trust that combines both provisions creates the strongest creditor protection available under Florida trust law. The distinction between the two determines how much protection a beneficiary actually receives.

How Does a Spendthrift Provision Work in Florida?

A spendthrift provision stops the beneficiary from assigning, pledging, or transferring the trust interest. It also blocks the beneficiary’s creditors from reaching that interest, or a distribution the trustee has not yet paid out, except where another section of the Florida Trust Code lets a particular creditor through.

Florida law requires the provision to restrain both voluntary and involuntary transfers. A clause that restricts only one type does not qualify as a valid spendthrift provision under § 736.0502. The trust does not have to use the word “spendthrift.” Section 736.0502(2) supplies a shortcut: a trust term saying the interest is held in a spendthrift trust, or words carrying the same sense, restrains both transfers on its own.

Standard spendthrift language bars the beneficiary from assigning, alienating, pledging, encumbering, or otherwise transferring the interest. A separate clause bars any creditor from attaching or levying on it. Variations in phrasing are acceptable as long as both restrictions are present.

Against an ordinary creditor, a spendthrift provision protects the beneficiary’s interest only while the property is still in the trust. Once the trustee has distributed money or property to the beneficiary, it is the beneficiary’s own, and a creditor can garnish or levy on it.

Which Creditors Can Override a Spendthrift Clause in Florida?

Florida law identifies three categories of creditors whose claims survive a spendthrift provision. A beneficiary’s child, spouse, or former spouse with a support or maintenance judgment can obtain a court order attaching present or future distributions. A judgment creditor who provided services protecting the beneficiary’s trust interest (typically an attorney in trust litigation) can reach distributions. Federal and state tax liens override spendthrift provisions to the extent provided by statute. These exception creditors are defined in § 736.0503(2).

Relief for a support claimant or a services creditor is a last resort. Section 736.0503(3) requires that claimant to make an initial showing that traditional collection methods are insufficient before a court will order attachment of trust distributions.

The third category, covering claims by the state of Florida or the United States, is not subject to the last-resort showing. Paragraph (2)(c) reaches a government claim only to the extent another Florida or federal law says it overrides the spendthrift provision, so whether a particular claim gets through depends on the statute behind it.

What Is the Difference Between a Spendthrift Trust and a Discretionary Trust?

A spendthrift clause and discretionary distribution authority are separate protections that address different creditor strategies. A spendthrift clause prevents creditors from attaching the beneficiary’s interest in the trust. Discretionary distribution authority under § 736.0504(2) prevents creditors from compelling the trustee to make distributions. The two protections work independently, and a trust can have one without the other.

A trust with a spendthrift clause but mandatory distributions is vulnerable to exception creditors. If the trust requires the trustee to distribute all income quarterly, the beneficiary has an enforceable right to that income. Exception creditors under § 736.0503 can obtain a court order attaching those mandatory payments despite the spendthrift clause.

A trust that combines a spendthrift clause with fully discretionary distribution authority removes both avenues. The creditor cannot attach the beneficiary’s interest and cannot compel the trustee to distribute. Section 736.0504(2) bars creditors from compelling distributions or reaching a beneficiary’s discretionary interest, and the statute specifies that this protection extends to exception creditors listed in § 736.0503(2).

Protection Type	Statutory Basis	What It Prevents	Limitation
Spendthrift	§ 736.0502	Creditor attachment of beneficiary’s trust interest	Exception creditors can reach present and future distributions
Discretionary	§ 736.0504(2)	Creditor compelling trustee to distribute	Trustee must genuinely exercise discretion
Combined	Both statutes	Both attachment and compelled distributions	A support claimant can still garnish what the trustee pays out

What Berlinger v. Casselberry Lets a Support Claimant Reach

Discretionary distribution authority does not put a trust beyond a support claimant’s reach. In Berlinger v. Casselberry, 133 So. 3d 961 (Fla. 2d DCA 2013), the Second District Court of Appeal held that a former spouse with an alimony judgment could garnish present and future distributions from a discretionary trust. The trustees had paid the former husband’s mortgage, utilities, and credit card bills for a year instead of distributing money to him directly; the court held the continuing writ reached those payments as well as any direct distributions.

The decision rests on Bacardi v. White, 463 So. 2d 218 (Fla. 1985), a Florida Supreme Court ruling the Second District held controlling, and on §§ 736.0503 and 736.0504, which codify it. Section 736.0504(2), the court said, does not stop a former spouse from garnishing disbursements a trustee chooses to make. Nothing in the opinion treats the statute and the case as being in conflict. The bar on compelling distributions stands: the former wife never asked a court to force a distribution, and no creditor can.

A discretionary spendthrift trust remains the strongest protection Florida trust law offers against ordinary creditors. A beneficiary who owes support is in a different position: once traditional collection has failed, a court can direct a continuing writ at whatever the trustee actually pays out, including bills paid on the beneficiary’s behalf.

Can a Settlor Create a Spendthrift Trust for Themselves?

Florida law does not allow a person to shield their own assets through a self-settled spendthrift trust. Under § 736.0505(1)(b), a settlor’s creditors can take up to the largest amount the trustee could pay the settlor directly or spend on the settlor’s behalf. The spendthrift clause, the discretionary distribution language, and every other trust design feature are irrelevant when the same person created and benefits from the trust.

The rule predates the Trust Code: in Menotte v. Brown (11th Cir. 2002), the Eleventh Circuit held that the spendthrift clause did not protect the income interest the settlor had kept for herself. That interest passed to her bankruptcy estate, while the trust corpus stayed beyond her creditors’ reach.

Spendthrift provisions protect beneficiaries of trusts created by someone else. A parent’s trust for children or a grandparent’s trust for grandchildren are the structures spendthrift clauses were designed for. A person who creates an irrevocable trust and names themselves as a beneficiary receives no creditor protection from the spendthrift provision against their own creditors.

About twenty states have domestic asset protection trust statutes that override this rule, Nevada, South Dakota, and Delaware among them. Florida has not. A Florida resident who creates a DAPT in another state faces the risk that Florida courts will apply Florida’s self-settled trust prohibition rather than the DAPT state’s protective statute.

Does a Spendthrift Clause Work in a Revocable Trust?

A revocable trust can include spendthrift language, but the clause does nothing against the settlor’s own creditors while the settlor is alive. Section 736.0505(1)(a) subjects revocable trust property to those creditors, except to the extent the property would be exempt if the settlor owned it outright.

The spendthrift clause in a revocable trust activates only after the settlor dies and the trust becomes irrevocable by its terms. At that point, the spendthrift provision protects the successor beneficiaries, typically children or grandchildren, from their own creditors in the same way it would in any third-party irrevocable trust.

When Does Spendthrift Protection End?

Spendthrift protection against an ordinary creditor ends when the trustee pays something out. Once a distribution reaches the beneficiary, creditors can garnish the bank account, levy on the investments, and execute against anything else the beneficiary owns. Protection ends earlier for a former spouse or child owed support, whose attachment order under § 736.0503(3) can reach distributions the trustee has not yet made.

The practical consequence is that a spendthrift trust provides maximum protection when assets remain inside the trust for as long as possible. Dynasty trusts are built around this principle, holding assets across multiple generations rather than distributing them outright. Section 689.225(2)(g) gives a 1,000-year ceiling to trusts created from July 1, 2022 onward; those created earlier, back to January 1, 2001, stop at 360 years. A properly structured dynasty trust can protect assets across successive generations, shielding what the trust still holds from each generation’s creditors.

A trustee who buys a residence or vehicle in the trust’s name, rather than handing the beneficiary money to buy it, keeps the asset itself inside the trust and out of an ordinary creditor’s reach. That structure does not stop a support claimant. In Berlinger, the continuing writ reached every bill the trustees paid for the beneficiary, the mortgage included.

A trust holds up best against ordinary creditors when it carries a spendthrift provision, gives the trustee full discretion, and puts that discretion in the hands of someone independent of the beneficiary. Florida’s trust-based creditor protection statutes still leave a support judgment its own route to whatever the trustee pays out, and no drafting choice closes it.