Revocable Trust for Married Individual
(Marital QTIP Trust, Clayton Provision, GST Tax Planning) (FL)

Summary

This template is a revocable trust for a married individual and includes a QTIP marital trust and Clayton provision. The template applies Florida law and is a more flexible alternative to the disclaimer trust and provides additional control over the disposition of the residuary trust estate. This template includes practical guidance, drafting notes, and alternate and optional clauses. A Clayton provision allows any part of the marital gift not elected to qualify for the marital deduction to pass to another, non-marital trust and to beneficiaries other than the surviving spouse without jeopardizing the entire marital deduction. Estate of Clayton v. Commissioner, 976 F.2d 1486 (5th Cir. 1992). A marital qualified terminable interest property (QTIP) trust with a Clayton provision allows the "disclaimed" property to be transferred to the non-marital trust (which operates like a bypass or credit shelter trust) for the benefit of the settlor's spouse and descendants. Thus, upon the settlor's death, the trustee has the option of moving property out of the marital trust and into the non-marital trust to shelter assets from estate tax, if needed. With the recent increase in the estate tax exemption ($13.99 million per person in 2025) and portability, there is little need to use a standard credit shelter and marital trust formula that could result in underfunding of the marital trust. A marital QTIP with Clayton provision allows the trustee or personal representative to determine which property should first be distributed to the marital QTIP trust, and then determine which property should be placed in the non-marital trust. This uses as much or as little of the decedent's estate tax exemption amount as needed at the time of death and takes into consideration basis step-up of the assets. The Clayton provision allows the fiduciary to consider all liabilities, taxes, and expenses, in combination with the relevant estate tax laws in effect at the time, to determine the best allocation of trust assets and use of estate tax exemption amounts. Additionally, the revocable trust may be utilized during the lifetime of the settlor to plan for incapacity, avoid probate, avoid the ancillary probate of property located in another jurisdiction, assist with tax planning, and provide a mechanism to control property dispositions for future generations while allowing for proper management of the trust assets during that time. For a full listing of key content related to estate plans for married or partnered people in Florida, see Estate Plan for Individual with Spouse or Partner Resource Kit (FL). For an in-depth discussion of trusts, see Characteristics and Uses of Trusts (FL), Requirements and Restrictions on Trust Purposes and Administration (FL), and Revocation, Amendment, and Termination of Trusts (FL).