Legal Question in Wills and Trusts in California

The trust I have states that the surviving spouse cannot access the funds in a disclaimer trust unless the funds in the Survivors Trust are used up. Does that mean that the Survivors Trust is now gone and the SS can freely live off of the Disclaimer trust? I am confused because I thought access to assets in a disclaimer trust were only available for specific purposes?


Asked on 4/17/12, 3:51 pm

2 Answers from Attorneys
Jennifer Rouse Meissner Joseph & Palley

It depends on the distribution terms of the disclaimer trust. Most contain what are called HEMS - access to principal for health, education, maintenance and support. The terms "maintenance" and "support" can be defined by the IRS fairly broadly especailly if the surviving spouse has no other assets to pay for her living expenses.

You should have an attorney review the disclaimer trust and any accountings that you have received for it.

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Answered on 4/17/12, 4:35 pm
Donald Field Donald L. Field, Jr., Attorney at Law

The language of the trust determines distribution rights of income and principal to a surviving spouse. You should retain a qualified attorney to provide you with advice regarding the administration of the Disclaimer Trust, which if it is funded is irrevocable after first death, and other related matters.

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Answered on 4/21/12, 6:25 am


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