In Missouri, a married couple’s trust (meeting specific criteria) can provide unique asset protection characteristics.
What Is A “Qualified Spousal Trust” (QST)?
In Missouri, a Qualified Spousal Trust (QST) allows property owned by a married couple’s trust to be treated as “Tenancy by the Entireties.”
What Is “Tenancy By The Entireties?”
In Missouri, “Tenants-by-the-Entireties” (TBE) is a unique form of property ownership reserved for married couples that provides special liability protections to spouses. The idea behind TBE is that both spouses simultaneously own the entirety of the property (real estate, financial accounts, etc.). In real-world terms, if someone finds only one spouse liable for something (e.g., they get sued), property classified as TBE cannot be touched. Both spouses must be responsible for TBE property to be exposed to creditors, etc.
What Property Is Classified As “Tenants-By-The-Entireties” (TBE)?
There are a few ways for the assets of a married couple to be owned as TBE:
-Financial accounts: there may be a box you can check designating these assets as TBE upon opening an account.
-Vehicles: there may be a box you can check designating these assets as TBE upon purchasing a vehicle.
-Real estate: when having a home titled, it must state on the deed that the owners are “a married couple” or “husband and wife.”
-Property properly transferred to a Qualified Spousal Trust (QST).
What Are The Criteria For A “Qualified Spousal Trust” (QST)?
Missouri statute 456.950, defines a QST as follows:
Definition — property and interests in property, immunity from claims, when — death of settlor, effect of — marital property rights, not affected by transfer — applicability. —
1. As used in this section, “qualified spousal trust” means a trust:
(1) The settlors of which are married to each other at the time of the creation of the trust; and
(2) The terms of which provide that during the joint lives of the settlors all property transferred to, or held by, the trustee are:
(a) Held and administered in one trust for the benefit of both settlors, revocable by either settlor or both settlors while either or both are alive, and each settlor having the right to receive distributions of income or principal, whether mandatory or within the discretion of the trustee, from the entire trust for the joint lives of the settlors and for the survivor’s life; or
(b) Held and administered in two separate shares of one trust for the benefit of each of the settlors, with the trust revocable by each settlor with respect to that settlor’s separate share of that trust without the participation or consent of the other settlor, and each settlor having the right to receive distributions of income or principal, whether mandatory or within the discretion of the trustee, from that settlor’s separate share for that settlor’s life; or
(c) Held and administered under the terms and conditions contained in paragraphs (a) and (b) of this subdivision.
2. A qualified spousal trust may contain any other trust terms that are not inconsistent with the provisions of this section, including, without limitation, a discretionary power to distribute trust property to a person in addition to a settlor.
3. All property at any time held in a qualified spousal trust, without regard to how such property was titled prior to it being so held, shall have the same immunity from the claims of a separate creditor of either settlor as if such property were held outside the trust by the settlors as tenants by the entirety, unless otherwise provided in writing by the settlor or settlors who transferred such property to the trust, and such property shall be treated for that purpose, including without limitation, federal and state bankruptcy laws, as tenants by entirety property. Property held in a qualified spousal trust shall cease to receive immunity from the claims of creditors upon the dissolution of marriage of the settlors by a court.
4. As used in this section, “property” means any interest in any type of property held in a qualified spousal trust, the income thereon, and any property into which such interest, proceeds, or income may be converted.
5. Upon the death of each settlor, all property held by the trustee of the qualified spousal trust shall be distributed as directed by the then current terms of the governing instrument of such trust. Upon the death of the first settlor to die, if immediately prior to death the predeceased settlor’s interest in the qualified spousal trust was then held in such settlor’s separate share, the property held in such settlor’s separate share may pass into an irrevocable trust for the benefit of the surviving settlor upon such terms as the governing instrument shall direct, including without limitation a spendthrift provision as provided in section 456.5-502.
6. The respective rights of settlors who are married to each other in any property for purposes of a dissolution of the settlors’ marriage shall not be affected or changed by reason of the transfer of that property to, or its subsequent administration as an asset of, a qualified spousal trust during the marriage of the settlors, unless both settlors expressly agree otherwise in writing.
7. No transfer to a qualified spousal trust shall avoid or defeat the Missouri uniform fraudulent* transfer act in chapter 428.
8. This section shall apply to all trusts which fulfill the criteria set forth in this section for a qualified spousal trust regardless of whether such trust was created before, on, or after August 28, 2011.
Important Considerations
It is to realize that there are certain hurdles and exceptions when it comes to asset protection planning. This includes but is not limited to transfers made to avoid known creditors (fraudulent transfers), specific bankruptcy scenarios, and governmental creditors (e.g., tax debt).