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Trust Drafting Tips: How to Make Trusts Harder to Reach in Divorce
Trusts have traditionally been used to protect wealth from divorce. However, what many estate planners refer to as “traditional” trust drafting (which continues to be used by many practitioners) is not nearly as effective at protecting wealth from the potential risks of divorce as approaches advocated by what some loosely refer to as “modern trust drafting.”
Much of this article compares and contrasts what might be viewed as a traditional approach to drafting clauses in an irrevocable trust, to what the modern approach to trust drafting would advocate. While the reasons that the modern approach will likely prove superior to the traditional approach might be obvious, the point is explained not only so that it is clear to matrimonial practitioners, but so that hopefully it will encourage estate planning attorneys to focus their drafting efforts on providing greater protection from future matrimonial actions of beneficiaries.
There are also a number of ancillary drafting considerations that might have an important impact on the security of trust assets from later matrimonial challenges, and these are explained as well. This article does not, however, get bogged down on nuances of state law, but rather focuses more on general planning ideas that should have applicability in a wide range of client matters. Individual practitioners will have to address how the application of those constructs may be impacted by their home state laws. While some of these concepts were addressed in “Trusts and Divorce” in the January and February 2010 issues of TheMatrimonial Strategist (see http://bit.ly/2nJzekb and http://bit.ly/2p107Q, respectively), this article expands on those concepts and addresses many new drafting and planning ideas that were not covered there. Trust drafting has also evolved rather substantially since that time.
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