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Challenging Estate Plans

By Martin M. Shenkman

The population is aging. Americans 85 and older are the fastest-growing demographic group. Five million Baby Boomers will be retiring every year for the next 15 years. Retirement is a major life inflection point that stimulates estate planning. The year 2012 saw a deluge of trusts being formed to take advantage of what was perceived as the last opportunity to make large gift transfers before a possible decline in the exemption from $5 million to $1 million. The result of all of this should be the need to evaluate more trusts in more divorce cases in the future.

Modern trust drafting has introduced new concepts that will affect the analysis of trusts. The powers granted to the settlor of the trust and other persons present interesting challenges and opportunities for matrimonial practitioners. Some of these issues are discussed below. Apart from the terms of the governing instrument and state law, the manner in which the trust is operated could have important bearing on its treatment in a divorce. As trusts have grown more complex, the ability of most clients to administer them in conformance with their terms has become more problematic. These growing lapses may well serve as fodder for matrimonial practitioners looking for a way to access trust income or assets.

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