When a married couple creates a marital trust, that trust splits into a bypass trust and a survivor’s trust after the death of the first spouse. While the surviving spouse uses the survivor’s trust, the bypass trust shelters assets from estate taxes by keeping them out of the surviving spouse’s estate. After one spouse dies, bypass trust distribution rules kick in, establishing what the bypass trust’s trustee must do and limiting the surviving spouse’s access to and control over trust assets. 

To enjoy the tax-saving benefits of the trust structure, the surviving spouse cannot unilaterally change a bypass trust. There are ways to address the spouse’s needs, but changing the trust can have significant implications for the rest of your estate plan.

At Robbins Estate Law, we guide Texas families through the complexities of estate planning, trust administration, and probate. As one of the largest estate law teams in Central Texas, we bring together five skilled attorneys and a 15-member support staff to offer straightforward advice, flat fees, and reliable timelines. Our team is here to simplify the process and help you protect what matters most.

 

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Understanding A/B Trusts and Bypass Trusts

Married couples often use an A/B trust, also called a marital trust, as a joint estate planning strategy. Upon the death of the first spouse, the trust splits into two sub-trusts. Trust A, the survivor’s trust, holds the surviving spouse’s share of their joint estate. Trust B, the bypass trust, holds the deceased spouse’s share.

Bypass trusts primarily work to preserve each spouse’s federal estate tax exemption, the amount a person can leave to heirs without triggering federal estate taxes, by removing the deceased spouse’s share from the surviving spouse’s taxable estate. Bypass trusts can be especially useful for blended families, providing for the surviving spouse while ensuring assets get to the intended beneficiaries.

Trust A can be revocable, meaning the spouse can make changes or cancel the trust more freely. Trust B, the bypass trust, must be irrevocable, meaning the spouse cannot freely change or revoke it. Bypass trusts limit the spouse’s ability to control the property within to offer tax-saving benefits. If the trust is not irrevocable, allowing the surviving spouse to control the assets within, the government may count it as part of the second spouse’s estate when they die, undoing the tax benefits. 

 

Typical Bypass Trust Distribution Rules

The rules governing bypass trusts are typically outlined in the trust document and can include restrictions on how the surviving spouse may access or use the trust’s assets. Common bypass trust provisions include that the surviving spouse:

  1. Generally cannot amend or revoke the trust;
  2. May receive income from the trust and principal distributions only for specific needs such as health, education, maintenance, or support; and
  3. Typically cannot change the beneficiaries unless the trust document gives them a power of appointment.

These limits ensure the trust remains outside the surviving spouse’s estate for tax purposes and protect the rights of trust beneficiaries.

 

Planning Ahead: Customizing Flexibility

While bypass trusts are often rigid after one spouse passes away, there are ways to build flexibility into your bypass trust distribution rules in advance. Several tools, if used carefully, can help make an otherwise restrictive bypass trust more adaptable:

  • Granting a power of appointment to allow the surviving spouse or a third party to redirect distributions;
  • Including a trust protector clause to authorize a third-party fiduciary to amend trust terms in response to changes in law or circumstances; and
  • Permitting the trustee to “decant” the trust, transferring assets to a new trust.

Consulting a trust lawyer is critical to ensure you avoid giving the surviving spouse enough control that the government will count bypass trust assets as part of their estate for tax purposes.

 

How Can a Surviving Spouse Modify a Bypass Trust?

Once a bypass trust becomes irrevocable, changing it is difficult—but not always impossible. 

Generally, to change the terms of an irrevocable trust, you need the consent of all beneficiaries. You may be able to get consent without court proceedings, or you may need a judge to sign off on the changes to make them effective. 

Another potential strategy involves using a power of appointment. If the original trust grants a limited or general power of appointment to the surviving spouse or a third party, they may be able to redirect how trust assets are distributed upon the spouse’s death.

 

Considerations When Trying to Modify a Bypass Trust

If you are not careful, attempts to modify a bypass trust may be successful at the expense of losing your tax-saving benefits. The deciding factor on whether the government considers property as part of your estate is the degree of control you have over it. Getting the consent of every beneficiary does not change that. As a result, even if you can make changes, you should only make limited, specific changes. 

Attempting to change the trust terms may also risk legal disputes over fiduciary duties. Trustees, who manage trusts, have legal obligations to act in the best interests of the trust and its beneficiaries. A modification that helps a spouse but harms beneficiaries may place trustees at risk of legal action.

 

How an Estate Planning Attorney Can Help

If you are a surviving spouse trying to understand a bypass trust or a family member seeking clarity, you should not attempt to navigate this alone. The legal and financial implications of modifying a bypass trust can send ripples through the rest of your estate plan.

An experienced estate planning attorney can:

  • Review trust documents,

  • Identify available options and explain terms clearly,

  • Advise whether modification strategies may work, and

  • Coordinate with financial professionals to address potential tax consequences and ensure compliance with state and federal law.

Legal advice enables you to make deliberate, informed choices and have peace of mind that your documents do what you need them to.

 

Trusted Guidance from Robbins Estate Law

At Robbins Estate Law, we help Texas families understand their rights under existing trusts and explore all legal options. Our firm focuses exclusively on estate law, with a dedicated team of attorneys who handle probate, trust administration, and estate planning every day. Contact Robbins Estate Law today to schedule a consultation.