Drafting Considerations in Appointing the Surviving Spouse as Trustee of the Nonmarital Trust

This article examines additional dispositive powers which might be given the surviving spouse as trustee of a more flexible nonmarital trust. Part II reviews the estate, gift, and income tax consequences of each of these powers. Part III briefly addresses special considerations relative to a nonmarital trust, which is to be funded by way of disclaimer by the surviving spouse. Part IV summarizes the administrative powers typically included in trust instruments insofar as these powers might compromise the testator’s objectives. Part V briefly discusses life insurance on the life of the spouse-trustee. Part VI addresses savings clauses and other defense drafting suggestions. The author concludes by noting that the appointment of the surviving spouse as trustee of the nonmarital trust has disadvantages, that the addition of dispositive powers gives rise to uncertainties, and that even if the trust includes all four of the proposed additional dispositive powers discussed in the article, the trust could be even more flexible if the spouse were not the trustee