Can I use my trust to prevent a beneficiary from getting married?

 In Blog, Estate Planning

California has a very strong public policy in favor of marriage, dating back to at least the 1800s. For instance, a provision in a prenuptial agreement that would encourage divorce between the parties is void. Similarly, a provision in a trust designed to prevent a beneficiary from getting married is also void.

One example of this would be a gift to a beneficiary that is conditional on the party not getting married. Such an invalid clause would be ultimately unenforceable. This rule has been enshrined in the law since 1872.

Cal. Civ. Code § 710

California Civil Code Section 710 says the following:

“Conditions imposing restraints upon marriage, except upon the marriage of a minor, are void; but this does not affect limitations where the intent was not to forbid marriage, but only to give the use until marriage.”

This section applies to gifts found in wills and trusts. While it is common to use conditional gifts in trust drafting to encourage certain behavior, preventing marriage is against public policy.

Intent of the settlor

Note that the code does not apply if the intent is not to forbid marriage, but rather to only “give the use of” until marriage. By way of illustration, consider a trust that is created on the settlor’s death for the surviving spouse. Many people assume that once the surviving spouse gets remarried, they will be provided for by the new spouse. Therefore, presumably, they would not necessarily need the trust funds at that point.

Such a provision (i.e., allowing the surviving spouse the use of the trust property until remarriage) is not a violation of this policy. This is because the intent is not to limit the surviving spouse’s ability to remarry.

If, on the other hand, the purpose of such a provision is actually to prevent the spouse from getting remarried (perhaps due to jealousy), it would not be enforceable. Courts have looked not only at the text of the trust itself, but also at the surrounding circumstances, to determine the intent behind the provision.

The takeaway from this is that, while a trust allows you a great deal of flexibility and creativity in how you distribute your assets, there are still some rules. When you set up your estate plan, the drafting attorney will be able to advise you on what types of provisions may not be enforceable when the time comes. Making sure you have a trust document that complies with the law will help ensure your wishes are carried out after you are gone.

Helix Law Firm can help with trust drafting

If you would like to draft a living trust, we can draft a trust tailored to your needs. Your living trust is the cornerstone of your comprehensive estate plan, which will include a pourover will, financial power of attorney, and healthcare power of attorney, among other documents.

If you’re interested in learning more about how Helix can help, please call us at (619) 567-4447 to schedule a free consultation.

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