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<b><i>Ferri v. Powell-Ferri</i></b>: A Critical Planning Case for Practitioners

BY Martin M. Shenkman
December 01, 2017

Practitioners should encourage all clients with existing irrevocable trusts to meet to review those trusts. Whether for marriage, divorce, tax planning (whatever the future law changes provide), general asset protection planning or other reasons, modifying old irrevocable trusts through decanting (or other means) might make improvements, or as in the Ferri v. Powell-Ferri case, save the trust assets. Ferri v. Powell-Ferri, 326 Conn. 438 (2017).

Timing is key, and it is important to try to avoid any taints of impropriety. To that end, it would be preferable, unlike in the Ferri case, to have the decanting completed well in advance of the divorce or other event that poses to attack the old trust. Practitioners should also address these issues when clients are entering into marriage and contemplating prenuptial agreements.

Clients need to be told that traditional or historic trust drafting commonly relied on techniques and provisions that are less than optimal. Mandatory income distributions, mandatory principal distributions at specified ages, or as in the Ferri case, permissible withdrawal rights of trust principal may not provide the utmost protection to clients, especially amidst a divorce.

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