By Steven J. Oshins, Esq., AEP (Distinguished)

A Spousal Lifetime Access Trust (“SLAT”) is an irrevocable trust for the benefit of the settlor’s spouse and descendants. The settlor makes transfers to the trust that must come from the settlor’s separate property.

If drafted properly, the trust assets are protected from the creditors and divorcing spouses of the settlor and of the beneficiaries and aren’t subject to estate taxes (if using a completed gift version) when the settlor and settlor’s spouse pass away.

THE KEY IS IN THE DRAFTING

A general fear that many clients and advisors have is that they hear the words “spouse” and assume that the trust assets are somehow being transferred to the spouse and are owned by the spouse upon a divorce (which couldn’t be further from the truth).

Certainly, a careless draftsman could find a way to draft the trust to give the settlor’s spouse vested rights to the trust assets and control over the trust assets. This would be unfortunate, but any such careless draftsman would be in the substantial minority.

THE FLOATING SPOUSE PROVISION

When drafting a SLAT, one of the most important concepts that the draftsman must master is to [nearly always] use a floating spouse provision to define the spouse.  For example, the trust agreement might have a definition that says “[n]otwithstanding anything to the contrary here, all references to the ‘Settlor’s spouse’ shall mean such person who is married to the Settlor at such time.”

The definition will likely be more extensive and will define exactly when the spouse stops being a spouse for trust purposes such as, for example, upon either spouse filing for divorce.

This gives the settlor indirect access to the trust assets via distributions to his or her spouse, but yet upon a “divorce” or “filing for divorce” the beneficiary spouse loses any possible access and the settlor can simply get remarried to again have indirect access to the trust assets.

TRUSTEES AND POWER TO FIRE AND HIRE TRUSTEES

Depending upon the trust assets and the trustee’s powers, among other trust agreement provisions, the settlor might also serve as a trustee or co-trustee. Otherwise, the settlor might appoint the settlor’s spouse as a trustee or co-trustee.

Regardless of this decision point, the settlor should almost always retain the power to fire and hire trustees. In fact, it is difficult to come up with more than a small handful of scenarios where the settlor wouldn’t retain this power (i.e., one example would be where the settlor agreed with the spouse in advance not to use a floating spouse provision and to give the spouse full control).

DISCRETIONARY TRUST VERSUS SUPPORT TRUST

Another key drafting decision is to use a discretionary trust rather than a Support Trust.

A “Support Trust” is a trust in which the trustee can make distributions for the health, education, maintenance and support of the beneficiaries.  However, this trust design, although simple, does not provide the greatest degree of creditor protection and divorce protection.  If the beneficiary spouse isn’t drafted in as a floating spouse, then it gives that spouse a vested right to the trust assets under the support standard which opens the trust assets up to being taken by a divorcing spouse in many jurisdictions.

The much better design, although slightly more complex, is to use a “Discretionary Trust” which generally uses two co-trustees. In this design, the settlor, settlor’s spouse or other trusted person is given the investment powers as investment trustee and an independent trustee, such as the settlor’s close friend or a corporate trustee, is given the power to make distributions in such co-trustee’s sole and absolute discretion. Because there is no support standard built into the trust provisions, this trust is generally 100% protected from divorce. There is an exception under Florida law, however.

SUMMARY

The SLAT is a popular trust option. But it must be drafted properly to work in its intended manner.

RELATED EDUCATION

If you found this article interesting, you might also be interested in these other educational programs and products by Steve Oshins:

• The Spousal Lifetime Access Trust: A Gifting and Creditor Protection Technique
• Estate Planning Techniques in a Time of Low Interest Rates
• The Installment Sale to an Intentionally Defective Grantor Trust
• The Grantor Retained Annuity Trust: Significant Estate Tax Savings with Nearly Zero Gift Tax Risk
• Steve’s FREE State Rankings Charts

ABOUT THE AUTHOR

Steven J. Oshins, Esq., AEP (Distinguished) is a member of the Law Offices of Oshins & Associates, LLC in Las Vegas, Nevada. He was inducted into the NAEPC Estate Planning Hall of Fame® in 2011. He was named one of the 24 “Elite Estate Planning Attorneys” and the “Top Estate Planning Attorney of 2018” by The Wealth Advisor. Steve was also named one of the Top 100 Attorneys in Worth and is listed in The Best Lawyers in America® which also named him Las Vegas Trusts and Estates Lawyer of the Year in 2012, 2015 and 2018 and Tax Law Lawyer of the Year in 2016 and 2020.  He can be reached at 702-341-6000, ext. 2, at soshins@oshins.com or at his firm’s website, www.oshins.com.