The trustee is not relieved of the duty to defend the trust just because the beneficiary happens to be getting divorced.


The trustee's primary allegiance is to the beneficiary, not to the non-beneficiary spouse or ex-spouse, unless the express terms of the trust provide otherwise. Thus, when there is marital discord, the trustee must suppress any personal feelings as to who may be at fault and vigorously defend—within reason and to the extent the law allows—the beneficiary's equitable property interest. As the English say, “trustees have the custody of the property: they do not keep the conscience of their beneficiary.” A trustee may even have a fiduciary duty to challenge, at trust expense, a charging order against discretionary distributions that interferes with the trustee's ability to carry out the settlor's intentions. Moreover, “[a]lthough the process and division may reflect the concept of marriage as a shared enterprise or partnership, this process and division likely will be counter to the intent of the trust's settlor and perhaps will require the participation of the family members of a beneficiary in the proceedings.” See Marc A. Chorney, Interests in Trusts as Property in Dissolution of Marriage: Identification and Valuation, 40 Real Prop. Prob & Tr. J. 1, 3 (Spring 2005). The quotation appears in Loring and Rounds: A Trustee’s Handbook (2012), at page 350. Reproduced below is Section 6.2.6 of the Handbook, which discusses the trustee’s general duty to defend the trust, including its dispositive provisions, from attack.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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Charles E. Rounds, Jr.
Suffolk University Law School

Professor of Law, Suffolk University Law School. Tenure granted: 1990. Author: Loring and... View Profile »

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