1. 1. As used in this section, "qualified spousal trust" means a trust:

   1. (1) The settlors of which are husband and wife at the time of the creation of the trust; and

   2. (2) The terms of which provide that during the joint lives of the settlors all property or interests in property transferred to, or held by, the trustee are either:

      1. (a) Held and administered in one trust for the benefit of both settlors, revocable by either or both settlors acting together while either or both are alive, and each settlor having the right to receive distributions of income or principal, whether mandatory or within the discretion of the trustee, from the entire trust for the joint lives of the settlors and for the survivor's life; or
      2. (b) Held and administered in two separate shares of one trust for the benefit of each of the settlors, with the trust revocable by each settlor with respect to that settlor's separate share of that trust without the participation or consent of the other settlor, and each settlor having the right to receive distributions of income or principal, whether mandatory or within the discretion of the trustee, from that settlor's separate share for that settlor's life.
2. 2. A qualified spousal trust may contain any other trust terms that are not inconsistent with the provisions of this section.

3. 3. Property or interests in property held as tenants by the entirety by a husband and wife that is at any time transferred to the trustee of a qualified spousal trust of which the husband and wife are the settlors shall be held and administered as provided by the trust terms in accordance with either paragraph (a) or (b) of subdivision (2) of subsection 1 of this section, and all such property and interests in property, including the proceeds thereof, the income thereon, and any property into which such property, proceeds, or income may be converted, shall thereafter have the same immunity from the claims of the separate creditors of the settlors as would have existed if the settlors had continued to hold that property as husband and wife as tenants by the entirety, so long as:

   1. (1) Both settlors are alive and remain married; and
   2. (2) The property, proceeds, or income continue to be held in trust by the trustee of the qualified spousal trust.
4. 4. Property or interests in property held by a husband and wife or held in the sole name of a husband or wife that is not held as tenants by the entirety and is transferred to a qualified spousal trust shall be held as directed in the qualified spousal trust's governing instrument or in the instrument of transfer and the rights of any claimant to any interest in that property shall not be affected by this section.
5. 5. Upon the death of each settlor, all property and interests in property held by the trustee of the qualified spousal trust shall be distributed as directed by the then current terms of the governing instrument of such trust. Upon the death of the first settlor to die, if immediately prior to death the predeceased settlor's interest in the qualified spousal trust was then held in such settlor's separate share, the property or interests in property in such settlor's separate share may pass into an irrevocable trust for the benefit of the surviving settlor upon such terms as the governing instrument shall direct, including without limitation a spendthrift provision as provided in section 456.5-502.
6. 6. No transfer by a husband and wife as settlors to a qualified spousal trust shall affect or change either settlor's marital property rights to the transferred property or interest therein immediately prior to such transfer in the event of dissolution of marriage of the spouses, unless both spouses otherwise expressly agree in writing.
7. 7. This section shall apply to all trusts which fulfill the criteria set forth in this section for a qualified spousal trust regardless of whether such trust was created before or after August 28, 2011.

(L. 2011 S.B. 59 § 1)