Can an irrevocable trust be broken by the surviving spouse just because the trust states the assets are to be divided between the children and not the surviving spouse?

Generally, no. A properly drafted trust removes the property from the decedent's estate and the property passes according to the terms of the trust. That is the primary reason for transferring property to a trust.

Trust law is one of the most complex areas of law. The surviving spouse should consult an attorney who specializes in trust and probate law who can review the situation and explain the options. However, actions to break a properly drafted trust can be extremely costly and rarely succeed.