
James F. McDonough
Of Counsel
732-568-8360 jmcdonough@sh-law.comFirm Insights
Author: James F. McDonough
Date: February 24, 2016

Of Counsel
732-568-8360 jmcdonough@sh-law.comThe unequivocal answer to the question is: it depends.
The grantor’s purpose for including spendthrift language in a trust is to protect the trust assets set from the beneficiary’s creditors and to prevent the beneficiary from selling or assigning his or her interest in the trust.
Pfannenstiehl is a Massachusetts divorce case that made its way to the state’s highest court where the lower court decision was affirmed by a 3-2 vote. The husband’s parents established the trust for their three children and funded the trust with stock of a closely held corporation. The father and his twin brother are officers and directors of the corporation and the brother is one trustee. The other trustee is the family attorney.
The trial court held the trust was not administered impartially as distributions were cutoff as the divorce loomed. The trial court held that the husband had a present enforceable right to distributions and his interest was vested in possession. The court felt that the ascertainable standard in the trust instrument obligated the trustees to maintain the standard of living of the beneficiary and there was an established pattern of making substantial distributions prior to the divorce. The distribution figures were between $50,000 and $80,000 for five years before the divorce.
Furthermore, the statute gives the trial judge discretion, based on a number of factors, what property to include in a marital estate and it may include intangibles and assets to be acquired.
In New Jersey, Tannen v. Tannen, raised the issue when counsel for a divorcing husband convinced a trial judge that the trust, created for his wife by her parents, should be deemed available to the wife for purposes of reducing the husband’s support obligation. The court relied on language in the fourth revision to the Uniform Trust Code (UTC) that created a vested right. The decision was reversed on appeal and the court held that, until the legislature adopts the fourth revision of the Uniform Trust Code, the prior version of the UTC remains in force.
What do these cases teach us? First, state law matters. Second, whether a state has adopted a restated version of the Uniform Trust Code may be significant. Third, does administration of the trust lie in the hands of family or a professional trustee? Would the Pfannenstiehl trust have fared better if the trustees moved the trust to Delaware engaged a professional trustee before resigning? We may never know but consideration should be given to a change of situs to a state with a directed trust statute. The father and his brother could have continued to manage the business leaving the trustees to deal with distributions.
One other point should be noted is that husband and wife had two children with disabilities. Clearly, the wife, as custodial parent, was a sympathetic figure to the trial court. Another point is that the court awarded the wife $1.3 million notwithstanding that the class of beneficiaries was not closed to descendants of the grantor’s children. One dissent argued it was not possible to determine the husband’s interest with the certainty required for division of a marital asset.
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Receiving a federal grand jury subpoena is not something most businesses or individuals anticipate. While it can be concerning, a federal grand jury subpoena does not necessarily mean that you are being accused of wrongdoing. It does, however, mean that a federal criminal investigation is underway and that federal prosecutors believe you may possess information […]
Author: George McGowan

Most New Jersey business owners purchase insurance policies, file them away, and assume they are protected if a claim arises. Without a regular insurance coverage review, many companies discover gaps only after a lawsuit, cyberattack, property loss, or other significant event occurs. An annual insurance coverage review can help businesses identify potential risks, ensure their […]
Author: George McGowan

Businesses and individuals often encounter situations where another party breaches a contract, fails to pay a debt, or continues harmful conduct. In many such disputes, a precisely drafted demand letter or cease-and-desist letter serves as a powerful legal tool. It can frequently resolve the dispute and avoid litigation. While demand or cease-and-desist letters can resolve […]
Author: George McGowan

Key provisions in your contracts, including those relating to indemnification, insurance, and defense, are essential to contract risk management. While sometimes considered “boilerplate,” these provisions play a pivotal role when determining which party is responsible for certain costs and liabilities. They must always be negotiated and drafted carefully. Indemnification Clauses Businesses should never overlook the […]
Author: George McGowan

Portability of estate and gift tax enables a surviving spouse to inherit any unused portion of their deceased spouse’s federal estate and gift tax exemption. So, if one spouse doesn’t utilize their full exemption, the surviving spouse can effectively double their exemption amount with regard to estate tax liability. For married couples, portability offers a […]
Author: Marc J. Comer

For many of us, pets are more than companions—they are members of the family. Yet they are often overlooked or inadequately provided for when it comes to estate planning. A pet trust offers a legally enforceable way to ensure that your animal continues to receive proper care if you become incapacitated or pass away. As […]
Author: Marc J. Comer
No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.
Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.
Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.
Let`s get in touch!
Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!