9087 / What provisions must a spendthrift trust contain to be enforceable?
“To B for life. Her right to these payments is not to be transferable.”“A beneficiary shall not have the right or power to anticipate, by assignment or otherwise, any income or principal given to the beneficiary by this Will or to sell, transfer, encumber or in otherwise charge his interest in income or principal in advance of actually receiving that income or principal. Neither the income nor the principal shall be subject to execution, garnishment, attachment, insolvency, bankruptcy or other legal proceeding of any character, or legal sequestration, levy or sale or at any time be applicable or subject to, voluntarily or involuntarily, the payment of a beneficiary’s debts, including, without limitation, any claims for alimony or support.”
A settlor’s intent may also be implied. The Restatement 3rd of Trusts provides that language in a trust instrument that restrains only voluntary alienation is sufficient to create a spendthrift trust that also implicates involuntary alienation.2
1. Restatement (Third) of Trusts § 58 cmt. a (2003) at cmt. b(3).
2. Restatement (Third) of Trusts § 58 (2003).