Clients often assume that if they have placed property in a trust, it is not subject to division by the Court in a divorce, but this is not necessarily true and can be a complex issue.

Kansas

Kansas takes a particularly broad approach to marital property. Under K.S.A. 23-2801, property owned by either spouse generally becomes marital property when the divorce action is commenced and a final decree is entered, regardless of whether it is held individually or jointly.

For trusts, the important distinction is that the court looks beyond the title or form of ownership. A trust is not necessarily a shield against the Kansas marital property rules. If a spouse has an ownership or beneficial interest in trust property, that interest can potentially be considered in determining the marital estate.

If one of the spouses creates a revocable trust and places property in it, that spouse maintains control over the property, so it would likely be treated the same as marital property not placed in a trust. If a spouse is instead the beneficiary of a trust created by someone else, then whether or not the Court considers same will likely depend on if the trust is revocable or not and an evaluation of the specific facts of the case.

In 2026 Kansas enacted legislation establishing community property trusts. Those trusts have specific statutory rules governing what happens upon divorce, including termination of the trust and distribution of the trust assets.

Missouri

Missouri’s general statute, § 452.330 R.S. Mo., requires the court to set aside each spouse’s nonmarital property and divide the marital property in proportions the court considers just.

Missouri case law is clear that placing marital property into a trust does not automatically make it nonmarital. Courts have held that property placed into a trust during the marriage can still be subject to division in divorce.

Trust income and trust interests can also become marital depending upon the circumstances. Missouri courts have considered factors such as whether a spouse had a present, vested, or enforceable right to receive trust assets or income.

Due to the complexity of issues involving trusts in divorce, it is best to consult with a family law attorney to determine what property may or may not be subject to division.

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