(a) Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of terms such as “absolute”, “sole” or “uncontrolled”, the trustee shall exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust, settlor's intent and the interests of the beneficiaries.
(b) Subject to subsection (d) of this section, and unless the terms of the trust expressly indicate that a provision in this subsection does not apply:
(1) A person, other than a settlor, who is a beneficiary and trustee of a trust that confers on the trustee a power to make discretionary distributions to or for the trustee's personal benefit, may exercise the power only in accordance with an ascertainable standard relating to the trustee's individual health, education, support or maintenance within the meaning of Section 2041(b)(1)(A) or 2514(c)(1) of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as amended from time to time; and
(2) A trustee may not exercise a power to make discretionary distributions to satisfy a legal obligation of support that the trustee personally owes another person.
(c) A power to make discretionary distributions, the exercise of which is limited or prohibited by subsection (b) of this section, may be exercised by a majority of the remaining trustees whose exercise of such power is not so limited or prohibited. If the exercise of the power by all trustees is so limited or prohibited, the court may appoint a special fiduciary with authority to exercise the power.
(d) Subsection (b) of this section does not apply to: (1) A power held by the settlor's spouse who is the trustee of a trust for which a marital deduction, as described in Section 2056(b)(5) or 2523(e) of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as amended from time to time, was previously allowed; (2) a trust during any period that the trust may be revoked or amended by its settlor; or (3) a trust, if contributions to the trust qualify for the annual exclusion under Section 2503(c) of said Internal Revenue Code.
(P.A. 19-137, S. 64.)
History: P.A. 19-137 effective January 1, 2020.