Sour Grapes: When Decanting Gives Rise to Litigation

By Lydia Lee Lockett and Peter Blumeyer

By the end of 2018, there were 29 states that had enacted trust decanting statutes, with approximately 22 of those taking effect in the last decade. With the prevalence of decanting increasing, courts are increasingly being forced to consider the circumstances under which decanting is permissible and, relatedly, what remedies are available in cases of impermissible decanting. It behooves fiduciaries, beneficiaries, and trusts and estates practitioners to familiarize themselves with this emerging area of law, so they can recognize and avoid the common pitfalls associated with decanting and recognize the attendant issues associated with decanting before those issues evolve into litigation. This article provides a selective overview of decanting and common themes and issues that have arisen in decanting litigation in the United States, including the authority to decant, the intersection of decanting and family law and special needs trusts, creditor avoidance, and remedies for unauthorized decanting.

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