When couples create a joint trust, the goal is usually simple: streamline their estate planning, avoid probate, and ensure assets pass smoothly to the surviving spouse and then to children or other beneficiaries. But what happens after one spouse dies? Can the surviving spouse change or amend the joint trust?
In Georgia, the answer depends entirely on how the trust was written. Some joint trusts allow changes; others lock everything in after the first spouse passes. Here’s how it works, what Georgia law says, and what surviving spouses need to know before making changes.
Understanding How Joint Trusts Work
A joint trust is a single trust created and funded by two spouses. While both partners are living, they typically share full control over the trust assets. Once one spouse dies, the trust often splits or converts into separate “shares” that determine how much control the surviving spouse still has.
A trust agreement may include:
- A survivor’s trust: assets the surviving spouse fully controls
- A marital trust: assets locked in for tax or protection purposes
- A family/bypass trust: assets reserved for beneficiaries after both spouses pass
Whether the surviving spouse can amend the trust depends on how these pieces are structured.
When a Surviving Spouse Can Amend a Joint Trust
Some joint trusts are written to stay fully revocable until both spouses pass away. In that case, the surviving spouse may amend or revoke the entire trust, including beneficiary changes.
A surviving spouse can usually amend a joint trust if:
- The trust states that it remains revocable after the first spouse’s death
- The trust assets remain in a fully revocable “survivor’s share”
- The trust specifically grants amendment authority to the surviving spouse
- Both spouses intended the survivor to have full control
This flexibility allows the surviving spouse to update the trust to reflect:
- Changes in financial circumstances
- New or removed beneficiaries
- Updates to tax planning
- Sale of property or business interests
If the trust permits amendments, the surviving spouse can typically sign a trust amendment document and update the terms.
When a Surviving Spouse Cannot Amend a Joint Trust
Many joint trusts become partially or fully irrevocable when the first spouse dies. This structure protects the deceased spouse’s beneficiaries and prevents unintentional disinheritance.
A surviving spouse usually cannot amend parts of the trust when:
- The trust becomes irrevocable at the first spouse’s death
- Assets are placed into a bypass/family trust
- Beneficiaries are guaranteed specific gifts
- The trust restricts the surviving spouse to “income only” access
- The deceased spouse’s share becomes permanently locked
In these situations, the surviving spouse may still have income rights or access for health, education, or support, but cannot change who ultimately inherits.
This is common in:
- Blended families
- Second marriages
- Asset protection planning
- Tax planning structures
For questions about irrevocable trust language, our attorneys can review your trust document through our Estate Planning Services.
How to Tell Whether the Trust Can Be Amended
The only way to know is to review the trust agreement itself. Look for:
- Sections labeled “Amendment,” “Revocation,” or “Powers of Surviving Spouse”
- Language that states the trust becomes irrevocable at first death
- Instructions for splitting assets into separate shares
- Statements about “survivor’s trust,” “marital trust,” or “family trust”
If the document is unclear, a lawyer can interpret the trust and explain your options.
What Happens if a Surviving Spouse Amends a Trust Improperly?
If a surviving spouse changes portions of an irrevocable trust, those amendments are usually invalid, and a court can reverse them. Worse, the surviving spouse could face:
- Legal challenges from beneficiaries
- Delays in distributing assets
- Potential breach of fiduciary duty claims
- Unnecessary litigation
Proper legal guidance prevents costly mistakes and ensures the trust is handled correctly.
Should You Update a Joint Trust After a Spouse Passes?
Even if some parts are irrevocable, the surviving spouse can often revise their own share through:
- Amendments to the survivor’s trust
- Restating the revocable portion
- Creating updated estate planning documents
- Adjusting beneficiary designations
- Updating powers of attorney and healthcare directives
Many surviving spouses choose to update their planning to provide clarity and reduce future complications. If you’re in this situation, our Georgia Trust Attorneys can help.
Final Thoughts
A surviving spouse may be able to amend a joint trust — but only if the trust’s language allows it. Some joint trusts remain fully revocable, while others become locked at the first spouse’s death to protect beneficiaries. The key is understanding the exact terms in your trust agreement.
If you need your trust reviewed or want to update your estate plan after losing a spouse, Hurban Law can guide you through your options and make sure everything is handled correctly under Georgia law.
