H. B. 3271
(By Delegates Webster and Amores)
[Introduced February 23, 2007; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §36-1-18 of the Code of West Virginia,
1931, as amended, relating to clarifying spendthrift trusts.
Be it enacted by the Legislature of West Virginia:
That §36-1-18 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 1. CREATION OF ESTATES GENERALLY.
§36-1-18. Trust estates; debts of beneficiaries; spendthrift
trusts; nonmerger of trusts.
(a) Estates held in trust are subject to the debts of the
beneficiary of the trust, except where the creator has expressly
provided in the trust instrument words substantially to the effect
that:
(1) The income or principal, or both, may only be applied to
the health, education, support or maintenance of a beneficiary,
other than the creator of the trust, for the life of the beneficiary, or the income or principal, or both, may only be
applied at the discretion of the trustee to or for the benefit of
a beneficiary, other than the creator of the trust, for the life of
the beneficiary, for a fixed term of years or other fixed duration
of time, or a fixed annuity amount or a unitrust amount computed
under a formula as a percentage of fair market value of assets in
the trust, regardless of whether the same is income, principal, or
both, may only be applied to or for the benefit of a beneficiary,
other than the creator of the trust, for the life of the
beneficiary or for a fixed term of years or other fixed duration of
time; and
(2) The trust is not subject to the liability of or alienation
by the beneficiary or beneficiaries.
(b) A trust, whenever created, may not be set aside or
terminated solely on the assertion of a creditor that the trustee
or trustees are the same person or persons as the beneficiary or
beneficiaries of the trust.
(c) This section applies to any trust established by an
instrument executed on or after the first day of July, two thousand
one, except as otherwise expressly provided in the terms of the
trust.
(d) This section applies to any trust established under an
instrument executed prior to the first day of July, two thousand one, when the trustee elects, in his or her sole discretion, to
administer the trust pursuant to the provisions of this section.
(e) Except as provided in subsection (c) of this section, this
section may not be construed to create or imply a duty on a trustee
to administer the trust pursuant to the provisions of this section,
and a trustee may not be held liable for refusing to administer a
trust pursuant to the provisions of this section.
Note: The purpose of this bill is to clarify that trusts which
do not make payments for health, education, support and maintenance
can also receive spendthrift protection. The current statute
clearly protects income-only trusts and trusts which are limited to
what is called "an ascertainable standard." Purely discretionary
trusts (including so-called special needs trusts) and annuity
trusts and unitrusts do not make payments related to health,
education, support, and maintenance and are not technically covered
by the existing language of the statute. The bill clarifies that,
in accordance with the intent of the settlor of a trust,
discretionary trusts, trusts for fixed terms, annuity trusts, and
unitrusts can also receive spendthrift protection for beneficiaries
other than the settlor.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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