CunninghamLegal – The Living Trust Lawyers
Case Analysis, by Jim Cunningham:
When writing a trust that contains a spendthrift provision, a client should consider using a trust protector as well as being able to decant the trust.
This means that the trust protector can move the trust site out of the state of California and create a new trust in a jurisdiction that does not permit invasion of the trust.
New Case Alert Summary: Filed September 6, 2016, Fourth District, Div. Three
Cynthia Vedder was entitled to all income and mandatory and discretionary distributions from her grandparents’ trust. The trust contained a spendthrift clause, as well as a “shutdown” clause prohibiting certain periodic mandatory principal distributions when those payments become subject to enforceable claims of creditors. Cynthia’s ex-husband obtained judgments against her for wrongfully-taken community property funds and unpaid child support. He petitioned for an order requiring the trustee to pay the child support judgment from trust income and principal, and to impose a lien on the trust to satisfy the community property judgment. The trial court denied the petition based on the shutdown clause.
The court of appeal reversed. A spendthrift clause does not defeat the claims of a support creditor. The shutdown clause does not apply to discretionary payments of income or principal, but only to mandatory principal distributions. Regardless of the nature of the distributions, the shutdown clause cannot defeat the claim of a support creditor. A trustee cannot refuse to satisfy an enforceable child support judgment for an improper purpose, and the court has discretion under Probate Code section 15305 to order a trustee to make distributions to satisfy a support judgment to the extent that it is equitable and reasonable to do so under the circumstances. On remand, the trial court must determine the amount of the income and principal distributions to satisfy the support judgment and future support obligations. The court also reversed as to the community property judgment, which can be satisfied by payment of up to 25 percent of discretionary distributions to a beneficiary.
New Case Alert Source: The State Bar of California
