Lee’s note: Here’s a great story from our good friend Cindy Clark, a Sarasota attorney who’s incredibly knowledgeable about gun trusts, estate planning and elder and firearms law.
Can a Gun Trust Protect My Guns in a Divorce?
I’m often asked, “Can a gun trust protect my guns in a divorce?” The short answer, like most legal answers, is “It depends.”
Estate planning isn’t about the documents – it’s about the plan. It’s about planning for the four D’s we don’t want to think about: death, disability, dementia, and divorce.
Quick! Think of people you personally know who got divorced or are a child of divorced parents. You probably thought of several in just a few seconds. Now, think of someone you personally know who became permanently disabled, can’t work because of that disability, and relies on taxpayer support to live. How many people came to mind? How many close personal friends or family members can you think of who suffered from or are suffering from Alzheimer’s or another type of dementia and need constant care?
You see my point: More people’s lives are affected by divorce than by disability or dementia.
Divorce is the most common way to lose half of your assets. So, divorce has to be part of a good estate plan. We plan for the worst and hope for the best.
Gun trusts and property distributions
So, what happens with a Gun Trust if the Grantor (the person who created the Gun Trust) lands in divorce court? It depends on state laws.
I’m going to generalize and over-simplify this a bit, so talk with a Florida divorce lawyer about your specific situation. I am not a divorce lawyer and this is not legal advice.
Keep in mind that most Gun Trusts are an estate planning tool – not necessarily an asset protection tool.
Florida is an “equitable distribution” state. Assets are divided into marital property (acquired by either spouse or both spouses during marriage) and separate property (acquired by one spouse prior to marriage, or acquired during marriage by gift or inheritance and kept as separate property – not commingled with other property). Marital property will be divided equitably, not necessarily equally, by the judge.
In Florida, if the Gun Trust is revocable (which most are), and the Grantor (the person who created the gun trust) was NOT married when he created the Gun Trust, and every firearm in that Trust was put in the Trust prior to the marriage (nothing was added during the marriage), it’ll most likely be treated as that spouse’s separate property and won’t be subject to equitable distribution.
If the revocable Gun Trust was created during the marriage and only one spouse is the Grantor, the trust property will likely be considered marital property and will be subject to equitable distribution unless the Grantor spouse can prove that the money or firearms put into that Gun Trust came from a gift or inheritance.
If the revocable Gun Trust was created during the marriage, but BOTH spouses are the Grantors, then the trust property will likely be considered marital property and will be subject to equitable distribution.
If the Gun Trust is irrevocable (which very few are), and has an independent trustee who is not the Grantor, and meets other requirements, MAYBE those guns will be protected from the divorcing spouse. But Florida’s public policies shape our laws, and we’ve decided as a state that people can’t hide their assets in trusts to avoid supporting their spouses and children – or repaying their creditors.
Gun trusts and child support or alimony
As for alimony and child support – all bets are off. In Florida, child support is determined by statutory formulas which consider both need and ability to pay. Both parents are expected to contribute to child support.
Alimony is also subject to statutory requirements. So, while you might keep your guns when the property is distributed, you may end up selling them to support your former or future family.
Again, I generalized and over-simplified this, so talk with a Florida divorce lawyer about your specific situation.
Fixing a gun trust after a divorce
Is there any good news? Yes. Spouses can negotiate their property settlement agreement between themselves and avoid having a judge make those decisions. If you want to keep your guns, give your spouse something else.
Also, if you’re awarded all the gun trust assets in the divorce decree, your joint gun trust can be amended and restated by a knowledgeable gun trust attorney, removing your ex-spouse from the document.
If you have questions about Gun Trusts or estate planning, give Cindy Clark at Tannenbaum Scro. P.L. a call at 941-444-5958. If you need Florida divorce advice, call Adam Bragg at Tannenbaum Scro, P.L. at 941-316-0111.Other articles that might interest you: