Hingham, MA estate attorney Ronald F. Driscoll talks about how he keeps an irrevocable trust within the family, during a divorce.
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In the last couple years, the judges in liberal Massachusetts, especially in the probate court, have decided that when is a divorce in front of them, and there’s an irrevocable trust as part of the marital asset, that they have decided that the marital asset should be divided, as opposed to going where the settler of the trust wanted it to go, say to a son or to a daughter or to a grandchild. With the specific language in the old time trust, the judges have been able to pick apart and actually use the assets of an irrevocable trust as part of the marital assets and divide it, or at least used it as an offset. So to prevent that, we have now changed the trust language.
So we’ve taken out an as attainable standard and put it in total discretion of the trustee. We also use a strong spendthrift trust, and we also don’t give out specific bequests to the children. So therefore the judge really has nothing to sink his teeth into, and we can prevent the irrevocable trust from going to a divorcing spouse, and try to keep it in the family along the bloodlines.