uniform trust code - Kansas Judicial Branch

1
2
3
4
5
6
7
8
9
(1) a distribution may be ordered by the court to satisfy a judgment or court
order against the beneficiary for support or maintenance of the beneficiary’s child, spouse, or former
spouse; and
(2) the court shall direct the trustee to pay to the child, spouse, or former
spouse such amount as is equitable under the circumstances but not more than the amount the trustee
would have been required to distribute to or for the benefit of the beneficiary had the trustee
complied with the standard or not abused the discretion.
(d) This section does not limit the right of a beneficiary to maintain a judicial proceeding
against a trustee for an abuse of discretion or failure to comply with a standard for distribution.
10
11
Kansas Comment
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
Subsection (a) is new.
Subsection (b) conforms to Kansas law which recognizes the validity of discretionary trusts.
See e.g. Myers v. Kansas Dept. of Social and Rehabilitation Services, 254 Kan. 467, 866 P.2d 1052
(1994). Whether or not a creditor can compel a distribution if the trustee has failed to comply with
the standard or abused the discretion, however, has not been directly addressed by Kansas courts.
In Myers, the Kansas Supreme Court recognized that a trustee may be required to distribute
funds from a discretionary trust if it can be demonstrated that the trustee is abusing its discretion by
acting arbitrarily, dishonestly or improperly. Myers, 254 Kan. at 478 (assets of discretionary trust
could not be considered as available resource in determining beneficiary’s eligibility for medical
assistance). On the other hand, the Kansas Court of Appeals has held that the beneficiary of a
discretionary trust may not be required to take legal action to force the trustee to make distributions
because the probability of such an action being successful is minimal. Simpson v. State Dept. of
Social and Rehabilitation Services, 21 Kan. App. 2d 680, Syl, 4, 906 P.2d 174 (1995), rev. denied
259 Kan. 928 (1996) (beneficiary of discretionary trust cannot be denied public assistance because
of refusal to bring legal action to remove trustees or force distributions).
Subsection (c) modifies Kansas law. The Kansas Supreme Court has held that a
beneficiary’s ex-wife cannot reach the assets of a discretionary trust to satisfy a judgment for
alimony. In re Watts, 160 Kan. 377, 162 P.2d 82 (1945).
89