Rights of the Beneficiary to Distributions


Today’s topic on trusts law: Rights to distributions

  Rights of the beneficiary to distributions Rights of a beneficiary’s creditor to collect from the trust


Rights of beneficiaries

  Much clearer in mandatory trusts (e.g., all of the income of the trust is to be distributed to beneficiary A; case 1, p.598).

With discretionary trusts (e.g., trustee decides how to allocate income among beneficiaries, how much income to distribute, or whether to invade principal), the trustee is subject to principles of fiduciary obligation  It’s not a trust if the trustee has unlimited freedom to exercise the granted discretion


Marsman v. Nasca

Marsman v. Nasca (1) 573 N.E.2d 1025 (Mass. App. 1991), p. 598 Sara Marsman Margaret Sally Marlette

One-third of residue, income payable quarterly, principal paid if trustees “deem it necessary or desirable,” in their sole discretion, for “his comfortable support and maintenance

Richard Marlette


Image courtesy of Dana Hall Archives.

Marsman v. Nasca

Marsman v. Nasca (2) 573 N.E.2d 1025 (Mass. App. 1991) Sara dies, leaving Cappy an income interest in trust, and discretion in trustee to pay principal.

1972 1971

Cappy retires, takes out mortgage for $4,000 to pay bills; marries Margaret.

Cappy executes will leaving house and other property to Margaret.

Sally and husband cover Cappy’s house expenses; Cappy deeds house to them, keeping a life estate.

1974 1987 1973 Nov. 1974

Farr gives Cappy $300 from principal, asks for written explanation of need for more. Cappy dies. Margaret asked to leave house. She sues Farr. Cappy’s difficulty in meeting expenses intensifies.


Image courtesy of Dana Hall Archives.

Did the trustee breach his fiduciary duties?

 How could he breach his duties if he had “sole and uncontrolled discretion” to distribute principal?

 The trustee was charged with providing “comfortable support and maintenance,” which means in accordance with the beneficiary’s accustomed standard of living   The trustee couldn’t prudently exercise his discretion if he did not inquire into Cappy’s needs Trustees always have to act in good faith and with some degree of reasonableness (page 606)  If the trustee had sole discretion, it wouldn’t be a trust. The point of a trust is for the trustee to fulfill the settlor’s intent, not the trustee’s own intent.


Did the trustee breach his fiduciary duties?

 The trustee did ask Cappy to explain his need for more money    The trustee’s letter “discouraged Cappy from making any requests for principal” (page 600) The duty to investigate requires a more active role for the trustee. You can’t shift the burden of investigation so readily to the beneficiary The trustee had notice of Cappy’s needs. He knew Cappy had taken out a mortgage on the house (which was used to pay bills) (page 600)


What’s the remedy?

  Can Margaret get the house back?

 No, Sally and Marlette were bona fide purchases without notice of the trustee’s breach of trust (pages 602-603) What can Margaret get?

 The funds from the trust that would have been given to Cappy (which go directly to his estate) (page 603)  Note that trust principal had increased from $65,600 to more than $80,000 at the time of Cappy’s death


Is the trustee liable personally for the breach of duty?

  There was an exculpatory clause, and these protect trustees from liability in the absence of bad faith, or intentional or reckless misconduct (and the clause itself did not excuse “willful neglect or default”) Does it matter that the trustee drafted the exculpatory clause?

 Yes, if the trustee thereby abused the confidential or fiduciary relationship with the settlor  This court put the burden on Margaret to prove abuse, but the majority rule (and current MA rule) is to put the burden on the drafter to prove no abuse


Extended discretion; exculpation; and arbitration

Extended Discretion

 Trustee discretion is “sole,” “absolute,” or “uncontrolled.”  In spite of extended discretion, trustee is still subject to judicial review.

 Trustee must not act arbitrarily or capriciously, or abuse its discretion, and must act in good faith (UTC: purposes of trust and interests of beneficiaries).

Exculpatory Clause

 Trustee is excused from liability or breach of trust.

 If trustee is draftsman, trustee must show disclosure of clause and its meaning to settlor.

 Cannot excuse liability for bad faith, reckless indifference, or intentional or willful neglect.

Mandatory Arbitration

 Claims for breach of trust must be resolved by arbitration.

 Whether clause is enforceable, precluding judicial review, is unresolved.

 Authority is scarce and contradictory.


Extent of discretion

 “Trustee shall use the income and principal of the trust in the trustee’s full, absolute, and uncontrolled discretion for the educational expenses of my children.”  Trustee pays child number one’s bills to attend the state university, but refuses to pay child number two’s bills to attend an out-of-state private university.


Rights of the beneficiary’s creditors

 Just as trusts can be designed to protect against mismanagement of wealth by beneficiaries, so their support will be secured, so can trusts be designed to protect against seizure of the wealth by the beneficiaries’ creditors  Discretionary trusts  Spendthrift trusts  If the settlor limits the beneficiary’s rights to the trust’s assets, creditors’ access can be limited


Evading creditors through discretionary trusts

   Pure discretionary trusts  Trustee has absolute, sole or uncontrolled discretion over distributions to the beneficiaries Support trust  Trustee is obligated to make distributions as necessary for the beneficiaries’ needs Discretionary support trusts  Trustee has absolute, sole or uncontrolled discretion over distributions to the beneficiaries subject to a “standard of distribution” (e.g., for the comfortable support and maintenance of the beneficiaries, as in Marsden , or for the education or health care needs of the beneficiaries)


Discretionary trusts* and creditors

Traditional law

 principles Pure discretionary and discretionary support trusts  No right of creditors to compel payment from the trustee—but creditors can secure a  Hamilton direct the trustee to pay the creditors before making any further distributions to the beneficiaries order to Doesn’t guarantee payment, but allows for substantial leverage  Support trusts  Creditors generally cannot compel payment, except for suppliers of necessaries (e.g., food, clothing, shelter, medicine, medical care) and for child or spousal support * Creditors can intercept distributions from that don’t have spendthrift clauses mandatory trusts


Discretionary trusts :



504 (2000, rev. 2004)

(b) …a creditor of a beneficiary distribution; or (c) To the extent a may not compel a distribution that is subject to the trustee’s discretion, even if: (1) the discretion is expressed in the form of a standard of (2) the trustee has abused the discretion.

trustee has not complied with a standard of distribution (1) or has abused a discretion: a distribution may be ordered by the court to satisfy a judgment or court order… for support or maintenance of the beneficiary’s child, spouse, or former spouse ; Note that under the Restatement, creditors can reach any distributions that a trustee makes or is required to make


Problem, page 613

   What happens under

traditional law


 B loses—not a supplier of necessaries or a spouse or child of A

What result under the UTC

What result under the Restatement


 B loses—not a spouse or child of A The Restatement black letter language suggests B wins, but the comment on page 613 makes things unclear


Spendthrift trusts

 Most trusts deal with the creditor problem through the spendthrift trust  If beneficiaries cannot alienate their interest (e.g., sell it to a sibling), the creditors cannot reach the interest   A few states assume trusts are spendthrift absent a provision permitting alienation

In other states, spendthrift provisions

are typically included in trusts  Permitted per Ind. Code § 30-4-3-2


Spendthrift trusts

   Theory is that the trust is a conditional gift; donors can impose conditions to protect their interests in determining the recipient of their gifts Compare:  Living parent and child, where parent can provide for child   no recourse against parent for child’s creditors.

Deceased parent and child, where trust is to provide for child’s support  any recourse against trust for child’s creditors?

The modern debate is not over whether to have spendthrift trusts, but when to make exceptions.  Voluntary creditors (e.g., lenders) can investigate finances.

  Involuntary creditors (e.g., tort victims) cannot investigate.

What of spouses and children?


Spendthrift trusts and tort victims

   What were the facts in   Scheffel , p. 616?

Kyle Krueger videotaped his sexual assault of a child and broadcast the videotape over the internet Kyle was the beneficiary of a trust from his grandmother that paid him all of the net income (mandatory) In addition, the trustee had sole discretion to pay out of principal when necessary for Kyle’s maintenance, support or education (discretionary support) Kyle was convicted for the sexual assault, and the child’s mother won a default judgment in her tort suit against Kyle


Scheffel v. Krueger Scheffel v.

782 A.2d 410 (N.H. 2001), p. 616 Art. VII: No principal or income payable or to become payable under any of the trusts created by this instrument shall be subject to anticipation or assignment by any beneficiary thereof, or to the interference or control of any creditors of such beneficiary or to be taken or reached by any legal or equitable process in satisfaction of any debt or liability of such beneficiary prior to its receipt by the beneficiary.

Should the court recognize an exception to spendthrift trusts for claims by tort victims?


Did the NH statute waive the spendthrift clause?

  No. The clause was inapplicable only if the settlor was the beneficiary or the assets were fraudulently transferred to the trust But other states have allowed tort victims to reach trusts with spendthrift clauses  In those cases, the spendthrift law was created by common law. Here we have a statute that has expressly addressed the issue (page 617)  Does this mean child support orders can’t pierce a spendthrift clause in NH?

 No. N.H. has amended its statute.


Spendthrift trusts, alimony and child support

  What were the facts in  Shelley , p. 618?

Grant was the beneficiary of a trust that entitled him to income and also to discretionary payments of principal for purposes of investing and when emergency needs arose (page 618).

  The emergency needs clause included his children as beneficiaries The trust had a spendthrift clause as well (page 618) The case arose because Grant failed to make child support payments from two previous marriages and alimony payments from one of the marriages


Patricia 354 P.2d 282 (Or. 1960), 618 Testator Grant Betty • •

Trust Income

(mandatory) Exception for spouse or children?

• Yes

Trust Principal

(discretionary) Exception for spouse or children?


Children Beneficiaries

Does “emergency” include the desertion by father?



Exceptions to spendthrift provision: UTC


503 (2000, rev. 2005)

… (b) A spendthrift provision is unenforceable against : (1) a beneficiary’s child, spouse, or former spouse who has a judgment or court order against the beneficiary for support or maintenance ... .

; (2) a judgment creditor who has provided services for the protection of a beneficiary’s interest in the trust statute of this State or federal law so provides.

enforced may obtain from a court an order ; and (3) a claim of this State or the United States to the extent a (c) A claimant against which a spendthrift provision cannot be attaching present or future distributions to or for the benefit of the beneficiary . The court may limit the award to such relief as is appropriate


Spendthrift trusts and providers of necessities

 Can creditors who provided necessary goods or services reach spendthrift trusts?

 Yes, according to traditional law, the Restatement (note 2.c, page 622) and Indiana law, but not under the UTC.


Spendthrift clause

 The interests of the beneficiaries of any trust created by this instrument shall not be subject to or liable for any anticipations, assignments, sales, pledges, debts, contracts, or liabilities of said beneficiaries, including but not limited to alimony claims and claims of any federal, state, or local governmental agency, and said interest shall not be seized by creditors of said beneficiaries, or by anyone, by attachment, garnishment, execution or otherwise.

 See also Scheffel spendthrift clause


Self-settled asset protection trusts, p. 624

   Can settlor’s shield assets from creditors by placing them in trust for the settlor’s own benefit?

Not under traditional law, the Restatement or the Uniform Trust Code However, some states have created statutory authorization for asset protection trusts  Will they work for out-of-state residents?

 Clear that you can’t assist a client to shield assets when liability is looming, but you may have an obligation to apprise other clients about this option


(updates p. 626)

Asset Protection Trust States (2012)