Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, October 15, 2021

Top state court upholds trust provision requiring beneficiary to be unmarried

TrustOn October 8th, the Indiana Supreme Court upheld a trust provision that made distribution of an inheritance contingent on the beneficiary being unmarried. 

The Court held that the provision "is not an unlawful restraint on marriage." The provision was part of a revocable trust that "resulted in the estate of Marcille Borcherding to her son, daughter and four stepchildren after her death." 

The trust stated that Marcille's son, Roger Rotert, would get his share of the estate outright if he was unmarried at the time of her death. If Rotert was to be married, the assets would remain in a subtrust. 

Rotert's third wife filed for divorce before Marcille Borcherding executed the trust, but the couple reconciled and were still married when Marcille died in 2016. Marcille's daughter Connie Stiles, who served as a trustee for the subtrust, came to an agreement with Rotert in which Rotert agreed to receive the subtrust's cash assets and agreed to keep the real property in the trust. Rotert later brought suit. 

Indiana law voids will provisions that condition a spouse's inheritance on remaining unmarried, but the Indiana Supreme Court stated that the rule does not apply to trusts, which can set marriage conditions on spouses and others.

See Debra Cassens Weiss, Top state court upholds trust provision requiring beneficiary to be unmarried, ABA Journal, October 13, 2021. 

https://lawprofessors.typepad.com/trusts_estates_prof/2021/10/top-state-court-upholds-trust-provision-requiring-beneficiary-to-be-unmarried.html

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