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Irrevocable Trusts in New York

Updated July 4, 2026 · 10 min read

The word "irrevocable" scares off a lot of clients before they understand what it actually means under New York law. It does not mean you lose all say over the assets forever, and it does not mean the trust can never change. It means you give up the unilateral right to take the assets back — a deliberate trade you make in exchange for tax, creditor, or Medicaid protection that a revocable trust simply cannot offer.

An irrevocable trust is also not a probate-avoidance tool first; a revocable living trust already handles that job, as our guide to avoiding probate explains. Irrevocable trusts exist to solve harder problems — protecting a home from nursing-home spend-down, removing a life insurance policy from your taxable estate, or moving future growth out of your estate before New York's tax cliff or the federal exemption catches up with it.

This guide explains what irrevocable really means in New York, including the two main ways an irrevocable trust can still be changed, the main types of irrevocable trusts organized by the goal each one serves, the basics of how they are taxed, and — just as important — when an irrevocable trust is the wrong tool.

Key takeaways

  • "Irrevocable" means you cannot unilaterally revoke the trust — it does not mean the trust can never be changed by any means.
  • EPTL 7-1.9 lets the grantor and all beneficiaries jointly consent to amend or revoke an otherwise irrevocable trust, while New York's decanting statute (EPTL 10-6.6) lets a trustee move assets into a new trust with updated terms.
  • The four irrevocable trusts we build most often serve four different goals: Medicaid protection (MAPT), removing life insurance from the estate (ILIT), using exemption between spouses (SLAT), and structured family gifting.
  • Most irrevocable trusts are drafted as "grantor trusts" for income tax purposes, meaning the grantor pays the tax on trust income personally even though the assets are outside the taxable estate.
  • Funding an irrevocable trust with more than the $19,000 annual exclusion per beneficiary uses part of your $15,000,000 federal lifetime exemption and may require a gift tax return.
  • An irrevocable trust is the wrong tool when you need continued access to principal, when your estate is well under the exemption thresholds, or when the complexity outweighs a modest benefit.

What "irrevocable" really means in New York

A revocable trust can be undone by the grantor alone, at any time, for any reason (EPTL 7-1.16). An irrevocable trust removes that unilateral escape hatch. Once you fund it, the assets legally belong to the trust, administered by a trustee — often someone other than you — for the benefit of the beneficiaries you named, under the terms you fixed at signing.

That loss of unilateral control is exactly what makes an irrevocable trust useful. Because you cannot simply take the assets back, Medicaid (once the look-back runs) generally cannot count the principal and it is generally outside your taxable estate, and your creditors generally cannot reach it unless the transfer was a voidable transfer — though any income interest you keep for yourself remains exposed to your own creditors (EPTL 7-3.1). But "irrevocable" in New York is not absolute. Two statutory tools let a trust's terms change even after signing, without a court fight.

Changing course: consent modification under EPTL 7-1.9

New York's EPTL 7-1.9 allows the creator of a trust and every person beneficially interested in it to jointly consent, in a signed and acknowledged writing, to revoke or amend the trust — even one whose own terms declare it irrevocable. This is one of New York's most useful and most underused planning tools: if circumstances change and everyone affected agrees, an irrevocable trust is not necessarily permanent.

The catch is unanimity. Every beneficiary with a current or future interest must consent, which becomes difficult or impossible once there are minor beneficiaries, unborn or unascertained beneficiaries (such as "my grandchildren"), or family members who no longer get along. Because a minor or unborn beneficiary's consent generally cannot be supplied by a guardian or guardian ad litem, the presence of such beneficiaries usually makes EPTL 7-1.9 unavailable; decanting under EPTL 10-6.6 is then the usual route. EPTL 7-1.9 is a valuable safety valve, not a routine amendment procedure.

Decanting: pouring an old trust into a new one under EPTL 10-6.6

Where consent modification is impractical, New York's decanting statute, EPTL 10-6.6, often provides a workaround. A trustee who holds discretion to distribute principal to a beneficiary can instead "decant" — appoint some or all of that principal into a new trust with updated terms — without going back to every beneficiary for consent and without a court proceeding, provided statutory notice is given to the people entitled to it.

Decanting is commonly used to fix drafting errors, extend a trust's duration, add or replace a trustee-removal mechanism, consolidate outdated trusts, or modernize a trust drafted years ago under different tax law. It cannot be used to add new beneficiaries who were never intended to benefit, and beneficial interests that are already vested generally cannot be reduced. Decanting has turned trusts that once looked permanently frozen into structures that can evolve as tax law, family circumstances, and beneficiaries' needs change — but it depends on a cooperative, discretion-holding trustee, which is one more reason trustee selection deserves real thought at the drafting stage.

The main types of irrevocable trusts, organized by goal

"Irrevocable trust" is a category, not a single product. The right structure depends entirely on the problem you are solving:

Trust typePrimary goalHow it typically works
Medicaid Asset Protection Trust (MAPT)Protect a home and savings from nursing-home spend-downGrantor transfers assets, keeps income and often the right to live in the home; transfers within the 60-month nursing-home look-back create a penalty period of ineligibility
Irrevocable Life Insurance Trust (ILIT)Keep life insurance proceeds out of the taxable estateTrust owns and is the beneficiary of the policy; premiums are often funded with annual exclusion gifts; existing policies transferred in are subject to a federal three-year rule
Spousal Lifetime Access Trust (SLAT)Use lifetime gift exemption while keeping indirect family accessOne spouse funds an irrevocable trust for the other spouse and descendants, removing growth from the donor's estate while the family retains indirect benefit
Irrevocable gifting trusts (including trusts using GST exemption)Move future appreciation to children or grandchildren efficientlyFunded with annual exclusion or lifetime exemption gifts; can be structured to skip a generation of transfer tax

Medicaid Asset Protection Trusts in practice

A MAPT is irrevocable, but it is not a total surrender of benefit: the grantor commonly retains the right to all trust income and, for a home, the right to live there for life. What the grantor gives up is access to principal. A transfer to the trust within 60 months before a nursing-home Medicaid application creates a penalty period of ineligibility, so the clock only starts running once the trust is actually funded — another reason unfunded planning documents are worse than no plan.

ILITs and the three-year rule

Life insurance death benefits are generally income-tax-free, but if you personally own the policy, the full proceeds are pulled into your taxable estate. An ILIT solves that by having the trust itself own and be the beneficiary of the policy from the start. Moving an existing policy into an ILIT works too, but under federal law the proceeds are pulled back into the estate if the insured dies within three years of the transfer — a trap for anyone who waits too long to fund an ILIT with an existing policy.

SLATs for married couples

A SLAT lets one spouse use lifetime exemption to benefit the other spouse (and often children) through an irrevocable trust, while the couple, as a unit, retains indirect access through the beneficiary spouse. This has become one of the more popular tools for couples with estates approaching the federal exemption, though New York's lack of portability between spouses means the New York estate tax angle still needs separate attention, as covered in our estate tax cliff guide.

Grantor vs. non-grantor trusts: the taxation basics

Most irrevocable trusts built for MAPT, ILIT, SLAT, or gifting purposes are deliberately drafted as "grantor trusts." Under the federal grantor trust rules, if the grantor retains certain powers — commonly the power to swap trust assets for equivalent value — all of the trust's income is reported and taxed on the grantor's personal return, even though the trust assets themselves are outside the grantor's taxable estate.

That arrangement sounds like a downside, but it is usually a benefit: the grantor's tax payment is itself a tax-free gift to the trust's beneficiaries, since the trust's assets grow without being reduced by income tax, and the payment does not count against the annual exclusion or lifetime exemption. A "non-grantor" trust, by contrast, is its own separate taxpayer. It files its own fiduciary income tax return and pays tax on income it does not distribute, at trust income tax brackets that reach the top marginal federal rate far faster than an individual's brackets do. New York also taxes certain non-grantor trusts created by New York residents under its fiduciary income tax rules, depending on where the trustees and trust assets are located, so the grantor-versus-non-grantor choice has real, recurring consequences and should be made deliberately, not by default.

Funding mechanics: gifts, exclusions, and exemption

Moving assets into most irrevocable trusts is treated as a completed gift. In 2026, you can give up to $19,000 per recipient per year ($38,000 for a married couple, though electing to split a single gift between spouses requires a gift tax return) without using any lifetime exemption. Contributions to a trust above that amount use part of your $15,000,000 federal lifetime exemption and generally require a gift tax return (Form 709) even though no tax is likely due, since the return tracks how much exemption you have used.

New York imposes no gift tax, but it is not indifferent to lifetime giving: taxable gifts made within three years of death are added back into the estate for New York estate tax purposes. That add-back can matter a great deal for an estate hovering near New York's $7,350,000 basic exclusion amount, where crossing the 105% cliff by even a small margin can erase the entire exclusion.

When not to use an irrevocable trust

Irrevocable trusts solve real problems, but they are the wrong answer more often than marketing on this topic suggests. Think twice before funding one when:

  • You might need the principal back. If there is a realistic chance you will need these specific assets for your own support before any waiting period runs, an irrevocable trust can leave you without access at the exact moment you need it.
  • Your estate is comfortably under the exemption thresholds. If your total estate is well below New York's $7,350,000 exclusion and the federal $15,000,000 exemption, and you have no long-term-care concern driving a MAPT, the complexity and cost of an irrevocable trust may outweigh any benefit — a revocable trust or a well-drafted will may do the whole job.
  • You are not ready to give up control. Many irrevocable structures work best with an independent trustee, not the grantor. If you are not comfortable ceding day-to-day decisions, the trust will fight your instincts every year it exists.
  • You need flexibility more than protection. Family circumstances change; EPTL 7-1.9 consent and decanting help, but they are not guaranteed fixes, especially with minor or unborn beneficiaries in the picture.
  • The five-year Medicaid clock does not fit your timeline. A MAPT funded on the eve of a nursing home admission provides no protection at all — the look-back period has to actually run.
  • You simply have not decided who should benefit. Irrevocable trusts are hard to unwind. If your intentions for beneficiaries are still unsettled, a revocable structure buys time without locking in a decision you might regret.

Because the tradeoffs cut in both directions, irrevocable trust planning works best as part of a coordinated trust planning engagement rather than a single document purchased off a menu, alongside the rest of a complete estate plan.

How Schwartsman Law Group can help

Irrevocable trusts are powerful precisely because they are hard to undo, which means the drafting has to be right the first time. Schwartsman Law Group PLLC designs MAPTs, ILITs, SLATs, and gifting trusts for families throughout Brooklyn, Manhattan, and Manhasset, matching the structure to your actual goals rather than a template. Call +1 212 518 3868 or schedule a free consultation to talk through whether an irrevocable trust fits your plan.

MS
Marianna Schwartsman, Esq.
New York trusts and estates attorney. Fordham Law, Summa Cum Laude. Formerly of Katten Muchin Rosenman LLP and Meltzer Lippe. More about the firm →
FAQ

FAQ

Can an irrevocable trust ever be changed in New York?

Yes: by unanimous written consent of the grantor and all beneficiaries under EPTL 7-1.9, or by trustee decanting under EPTL 10-6.6, both explained in the sections above.

What is the difference between a MAPT and an ILIT?

A Medicaid Asset Protection Trust (MAPT) protects a home and savings from nursing-home Medicaid spend-down after a 60-month look-back period. An Irrevocable Life Insurance Trust (ILIT) instead owns a life insurance policy so the death benefit is kept out of your taxable estate. They serve different goals and are often used together in the same overall plan.

Do I have to pay tax on income earned by my irrevocable trust?

It depends on how the trust is drafted. Most MAPTs, ILITs, SLATs, and gifting trusts are set up as grantor trusts, meaning the grantor reports and pays tax on the trust's income personally, even though the assets are outside the taxable estate. A non-grantor trust instead pays its own tax as a separate taxpayer, often at compressed trust income tax brackets.

How much can I put into an irrevocable trust without owing gift tax?

Annual-exclusion gifts (per beneficiary, per year) need no return; larger gifts draw on the lifetime exemption and require a gift tax return even when no tax is due — see "Funding mechanics" above for the current figures.

Does funding an irrevocable trust immediately protect assets from nursing home costs?

No — funding starts the 60-month nursing-home look-back, and a transfer made shortly before an application can produce a penalty period instead of protection (see the MAPT discussion above).

When is a revocable trust a better choice than an irrevocable one?

When your main goals are avoiding probate, planning for incapacity, and keeping full access and control over your assets, a revocable trust is usually the better fit. Irrevocable trusts make sense when you specifically need Medicaid protection, estate tax reduction, or removal of life insurance from your taxable estate, and are willing to trade access for that protection.

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