Spendthrift Trust: What Is It and How Does It Work?

You can create a spendthrift trust with online estate planning software, but using an attorney might be a safer bet.
Roberta Pescow
By Roberta Pescow 
Published
Edited by Tina Orem

Many or all of the products featured here are from our partners who compensate us. This influences which products we write about and where and how the product appears on a page. However, this does not influence our evaluations. Our opinions are our own. Here is a list of our partners and here's how we make money.


The investing information provided on this page is for educational purposes only. NerdWallet, Inc. does not offer advisory or brokerage services, nor does it recommend or advise investors to buy or sell particular stocks, securities or other investments.

A spendthrift trust is a trust that limits the beneficiary’s access to the trust assets according to specific terms the grantor sets. Spendthrift trusts help ensure that beneficiaries can’t squander their inheritance; they also protect trust assets from creditors.

Rather than allowing the beneficiary to receive a lump sum, the trustee releases the money incrementally

New York City Bar Legal Referral Service. Spendthrift Trust. Accessed Apr 25, 2023.
. For that reason, a spendthrift trust can be especially useful if your beneficiary is:

  • Not mature enough to make wise spending choices.

  • Impulsive with money.

  • In heavy debt, or at risk of going into heavy debt.

  • Easily fooled or defrauded.

  • Suffering an active addiction that might cause excessive spending.

  • A child with functional needs and is eligible for SSI or Medicaid

    Social Security Administration. Program Operations Manual System (POMS). Accessed Apr 25, 2023.
    .

  • Involved in or at risk of getting a divorce (courts may not consider trust assets as marital property when dividing assets)

    American Bar Association. Interests in Trusts as Property in Dissolution of Marriage. Accessed Apr 25, 2023.
    .

  • Employed in an industry where lawsuits are common (creditors typically can’t seize trust assets to pay settlements).

How does a spendthrift trust work?

A spendthrift trust is a separate legal entity with three major elements:

  • A grantor: Also known as a “settlor,” the grantor is the person who creates the trust and transfers their assets into it.

  • A beneficiary: This is the person who receives benefits from the trust.

  • A trustee: This is the person who manages the trust assets in accordance with the terms of the trust. You may be able to appoint yourself as trustee, but if you do so, you’ll need to also appoint a successor trustee who can take over after you die or become incapacitated.

Trust & Will - Will

GoodTrust

Nolo’s Quicken WillMaker - WillMaker

Price (one-time)

Will: one-time fee of $199 per individual or $299 for couples. Trust: one-time fee of $499 per individual or $599 for couples.

Price (one-time)

$149 for estate plan bundle. Promotion: NerdWallet users can save up to $10.

Price (one-time)

None

Price (annual)

$19 annual membership fee.

Price (annual)

$39

Price (annual)

$99 to $209 per year.

Access to attorney support

Yes

Access to attorney support

No

Access to attorney support

No

Key characteristics

Special wording

What distinguishes a spendthrift trust from other types of trusts is that it contains a spendthrift clause (also known as a spendthrift provision). This spendthrift clause designates the trust itself as the only owner of trust assets, rather than automatically transferring ownership to your beneficiary when you die. The terms of the trust explain exactly how and when the trustee will release the funds to your beneficiary over time according to a schedule you create.

Creative timing

You can limit the beneficiary’s access to funds. The trustee can transfer fixed amounts on fixed dates, for instance, or you can allow the beneficiary to draw up to a certain amount of money from the trust at certain times. You can even design exceptions for emergencies.

Potential creditor protection

Although assets in a spendthrift trust are often safe from creditors, there are a few exceptions to be aware of, and you should check your state’s rules before proceeding:

  • Child support obligations.

  • Alimony.

  • Federal tax liens.

  • Creditors with an enforceable court judgment against the beneficiary.

  • Trust income that’s higher than the beneficiary needs for support.

Alternatives

One alternative to a spendthrift trust is a spendthrift living trust (an inter vivos trust), which disburses funds in increments while you’re still alive. You can act as trustee and make the scheduled disbursements yourself. However, you must name a successor trustee who can take on this responsibility after you die.

Spendthrift trust examples

Here are a few examples that show a spendthrift trust in action.

  • Miriam is 95 years old and wants to leave her entire estate, worth $450,000, to her beloved great-nephew, Kyle. Although Kyle is mature and responsible, Miriam doesn’t want to give him access to his inheritance all at once. Kyle is still carrying massive medical debt from a major emergency surgery that he’s fighting with his health insurance company to cover. With it unlikely that the insurance company will ever pay out, and creditors constantly hounding Kyle, Miriam decides to create a spendthrift trust that gives Kyle a monthly allowance of $3,000. This will give Kyle enough to make his life more comfortable as he recuperates, but it will also protect the bulk of the estate from creditors, because whatever remains in the trust is considered a trust asset and not Kyle’s personal property to garnish.

  • Edward wants to leave his granddaughter, Amanda, $50,000 when he dies. Although Amanda is a sweet and loving granddaughter, she’s only in her early twenties and has a notorious history of reckless spending. To prevent Amanda from squandering her inheritance, Edward decides to create a spendthrift trust that allows Amanda to draw up to $1,000 monthly from the account. This lets her treat herself to some luxuries without immediately spending her whole inheritance.

Are spendthrift trusts revocable or irrevocable?

Spendthrift trusts can be revocable (meaning they can be modified at a later date if desired) or irrevocable (meaning they cannot ever be changed).

  • Revocable spendthrift trusts have the advantage of flexibility, so that you can adjust the terms if your beneficiary matures or their situation changes. 

  • Irrevocable spendthrift trusts have the advantage of potentially reducing estate taxes. 

Spendthrift trust pros

Spendthrift trusts bring a number of advantages:

  • May protect the beneficiary’s trust assets from most creditors and lawsuits.

  • Gives the beneficiary a reliable stream of income while preventing irresponsible spending of the assets.

  • Grantor can retain control over the assets.

  • Spendthrift trust assets are often excluded from the overall estate for tax purposes.

  • Not subject to probate if established while you’re alive.

Spendthrift trust cons

There are a few disadvantages to spendthrift trusts:

  • They can be costly to set up and maintain. 

  • If your trust is irrevocable, you won’t be able to modify it if circumstances change.

How to set up a spendthrift trust

You can set up a spendthrift trust yourself by using an online estate planning platform that can guide you step by step. However, you may prefer working directly with an estate planning attorney because even minor errors could compromise or invalidate your trust. Also, states have different rules about when spendthrift trusts are allowed; which creditors can go after assets in spendthrift trusts; and what can happen to the disbursements.

Consider a few important questions that can help ensure your trust will operate according to your needs and wishes:

  • Who will act as trustee? If you’ve chosen yourself as trustee, who will be your successor trustee if you’re no longer able to fill that role?

  • If your beneficiary is a minor, who will you appoint as their guardian to manage the trust payments?

  • Do you want your trust to be revocable or irrevocable?

  • How often should the beneficiary receive payments, and in what amount?

  • Do you want the payments to be a percentage of the trust principle or a percentage of trust income?

  • Should payments occur on a strict schedule or leave room for some flexibility?

  • For how many years should payments continue? Do you want payments spread over the expected lifetime of the beneficiary or over a limited number of years?

Compare online will makers

Company
NerdWallet
rating
Price
(one-time)
Price
(annual)
Access to
attorney support
Learn more
Ease of use
Trust & Will - Will
Trust & Will - Will
Get started

on Trust & Will's website

Will: one-time fee of $199 per individual or $299 for couples. Trust: one-time fee of $499 per individual or $599 for couples. $19 annual membership fee.Yes
Get started

on Trust & Will's website

Digital Assets
GoodTrust
GoodTrust
Get started

on GoodTrust's website

$149 for estate plan bundle. Promotion: NerdWallet users can save up to $10.$39No
Get started

on GoodTrust's website

Comprehensive services
Nolo’s Quicken WillMaker - WillMaker
Nolo’s Quicken WillMaker - WillMaker
Get started

on Nolo's website

None$99 to $209 per year.No
Get started

on Nolo's website

State-specific legal advice
LegalZoom - Last Will
LegalZoom - Last Will
Get started

on LegalZoom's website

Will: $199 for Basic, $299 for Premium with attorney assist. Trust: $499 for Basic, $599 for Premium with attorney assist.$199 per year for attorney assistance after the first year.Yes
Get started

on LegalZoom's website

Get more smart money moves – straight to your inbox
Sign up and we’ll send you Nerdy articles about the money topics that matter most to you along with other ways to help you get more from your money.