Marital Trust Attorney in Austin, TX

Marital Trusts for Austin Couples

A marital trust holds the share of a deceased spouse’s estate that is set aside for the surviving spouse. Because it qualifies for the unlimited marital deduction, no estate tax is due at the first death. Unlike leaving everything outright, a marital trust lets the first spouse decide where the property goes after the survivor’s death, which is why it is so useful for second marriages and blended families.

Reviewed by Turner Henington, attorney and former KPMG tax accountant, Texas Bar No. 24148206 · Updated November 2026

How a Marital Trust Works

Property passing from a deceased spouse to a surviving spouse who is a U.S. citizen generally qualifies for an unlimited estate tax deduction (26 U.S.C. § 2056). Leaving property outright qualifies, but so does leaving it in a properly drafted trust. Most plans for larger estates split the deceased spouse’s share in two:

• a bypass (credit shelter) trust up to the available exemption, which is not taxed at either death, and
• a marital trust for the rest, which is not taxed at the first death and is included in the survivor’s estate at the second.

Types of Marital Trusts

For most families we use a QTIP trust.

Remarriage and Blended Family Protection

When everything passes outright to a surviving spouse, the survivor can later leave it to a new spouse or to anyone else. A QTIP marital trust prevents that. The survivor receives all of the income and, if the trust allows, principal for their needs, but the first spouse’s chosen beneficiaries, usually their own children, receive what is left. Texas community property makes this especially important, because each spouse owns half of what the couple acquired during the marriage and can direct only their own half. See estate planning for blended families and estate planning for married couples.

Tax Planning With a Marital Trust

• Deferral. No estate tax at the first death, no matter how large the marital trust.
• A new basis at the second death. Because marital trust property is included in the survivor’s estate, it generally receives a step-up in basis when the survivor dies (26 U.S.C. § 1014(b)(10)), unlike bypass trust property.
• Flexibility after death. With a QTIP trust, the executor decides how much to elect on the estate tax return, which can be combined with portability.
• Generation-skipping planning. A reverse QTIP election can preserve the first spouse’s GST exemption for property in the marital trust.

Why Work With Us

• Tax background. Turner Henington is a former KPMG tax accountant, so we design trusts with both the estate tax and your family’s income tax in mind.
• We work with your CPA and advisor. Marital and bypass trust decisions often happen after a death, on the estate tax return, so we coordinate with the people who prepare it.
• Flat-fee quotes. After a free consultation, you get a written flat-fee quote before any work starts.
• We also handle the first death. Funding these trusts and making the elections is part of settling the estate, and we handle both the planning and the administration.

Talk to an Estate Tax Planning Attorney

Call (512) 737-8404, book a free consultation, or send us a message below.

What Our Clients Say

Marital Trust FAQ

Is a marital trust the same as a QTIP trust?

A QTIP trust is the most common kind of marital trust. Other kinds include a general power of appointment trust, an estate trust and, for a non-citizen spouse, a QDOT.

Does a marital trust avoid estate tax?

It defers it. No estate tax is due at the first death, but the marital trust is included in the surviving spouse’s estate at their death, where the survivor’s own exemption can shelter it.

Can a surviving spouse change who inherits a marital trust?

Not with a QTIP trust. The first spouse decides who receives the property after the survivor’s death. With a general power of appointment trust, the survivor decides.

What if my spouse is not a U.S. citizen?

The unlimited marital deduction generally applies only if the property passes to a qualified domestic trust (QDOT), which has its own rules.

Do I need both a bypass trust and a marital trust?

Larger estates often use both: a bypass trust up to the exemption and a marital trust for the rest. Smaller estates may use a single flexible trust.

Other Estate Tax Planning Tools

• Estate tax planning in Austin: overview
• Bypass (credit shelter) trust
• QTIP trust
• Reverse QTIP election
• Portability: keeping a deceased spouse’s unused exemption
• The Texas community property double step-up
• Lifetime gifting in Texas

Sources

• 26 U.S.C. § 2056 (marital deduction)
• 26 U.S.C. § 2056A (qualified domestic trust)
• 26 U.S.C. § 1014 (basis of property acquired from a decedent)
• 26 U.S.C. § 2044 (QTIP property included in the survivor’s estate)
• IRS: What’s new, estate and gift tax

This page is general information, not tax or legal advice for your situation. Reading it does not create an attorney-client relationship.