Maryland, like most American jurisdictions, has long recognized spendthrift provisions in trusts. Smith v. Towers, 69 Md. 77, 90-91 (1888), was the first instance of the Maryland Court upholding spendthrift provisions: “[T]he founder of a trust may provide in direct terms that his property shall go to his beneficiary to the exclusion of [the beneficiary’s] alienees, and to the exclusion of [the beneficiary’s] creditors.” Id. at 90-91. The underpinning of a spendthrift provision is the right of a donor to control the ultimate disposition of his or her property.
Essentially, a spendthrift provision makes property available for the use of a beneficiary without exposing that property to the beneficiaries’ creditors:
“A spendthrift trust is an American legal creation, designed specifically to afford a beneficiary those things he cannot afford, while simultaneously protecting him from the claws of cozened creditors. It runs the gamut from the benefactors fortune to the beneficiary’s good fortune and the creditors misfortune.”
Watterson v. Edgerly, 40 Md. App. 230, 231 (1978). No special language is required to create a spendthrift trust as long as the settlor’s intention is clear. A popular formulation of the spendthrift clause is set forth in the last will and testament recounted in Kirkland v. Mercantile Safe Deposit & Trust Co., 218 Md. 17, 20 (1958):
“All payments hereunder directed to be made to the beneficiaries shall be into their hands and not to others, whether claiming by their authority or otherwise.”
A longer, and more detailed rendition of a spendthrift clause can be found in Hoffman Chevrolet. v. Wash. Co. Nat’l Sav., 297 Md. 691, 705 (1982):
“NONALIENATION OF BENEFITS. Benefits payable under this Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution, or levy of any kind either voluntary or involuntary, including any such liability which is for alimony or other payments for the support of a spouse or former spouse, or for any relative of the participant, prior to actually being received by the person entitled to the benefit under the terms of the Plan, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, or otherwise dispose of any right to benefits payable hereunder shall be void. The trust shall not in any manner be liable for, or subject to, the debts contracts, liabilities, engagements, or torts of any person entitled to benefits hereunder.”
Although spendthrift language may vary, it is recommended that the clause’s language is carefully chosen and drafted because of the increased pressure on asset protection devices.
A spendthrift provision can be extremely effective for protecting property from beneficiaries’ creditors. In Watterson v. Edgerly, for example, the Court of Special Appeals upheld the effect of a spendthrift clause in somewhat unusual circumstances. In that case, a husband and wife owned real property as tenants-by-the-entirety. While the husband had a creditor seeking payment from him, he conveyed all of his interests in the real estate to the wife. The wife then wrote a will creating a spendthrift trust for the benefit of her husband. “Aggravating the issue is the fact that the wife died on the sixty-first (61st) day following the conveyance to her by the husband, and the sixtieth (60th) day subsequent to the execution of her will.” Watterson, 40 Md. App. at 232. The trial court decided that the transaction should be set aside because it was accomplished when the wife was terminally ill and when the husband had long been insolvent. The Court of Special Appeals found that it is not a fraudulent conveyance for one spouse to transfer a tenants-by-the-entirety property to the other spouse when the creditor has no attachable interest in the property due to the tenancy: “When, as here, a husband and wife hold title as tenants-by-the-entireties, the judgment creditor of the husband or of the wife has no lien against the property held as entireties, and no standing to complain of a conveyance which prevents the property from falling into his grasp.” Id. at 238. The court held further that a spendthrift clause will be upheld even if created in contemplation of death:
“Furthermore, even if the acts performed by the husband and wife were in contemplation of death of the wife, we fail to perceive why that would alter the situation and cause the spendthrift trust to be deemed invalid. The husband and wife, under existing Maryland law, had a right to dispose of the property sans regard to the judgment against the husband. The law does not specify the time frame in which the conveyance may be made, nor does it permit a court to conclude, simply because the wife died within a relatively short period of time from the dates of the conveyance and execution of the will, that the husband is, in fact, the settlor of the trust. What the trial court has done is to strip from the decedent her right to dispose of her estate, within the confines of the law, as she best determines. It has assessed against her a penalty for dying too soon after the conveyance and the execution of her will, and has permitted her separate estate to be invaded to satisfy her husband’s creditors.”
Id.
Certain creditors have been able to penetrate spendthrift protection with argument that such is against public policy. In Safe Deposit & Trust Co. v. Robertson, 192 Md. 653 (1949), the Court of Appeals permitted permanent alimony to be satisfied on a writ of garnishment against the income of a trust:
“This result has been reached on the ground that it is against public policy to permit the beneficiary to have the enjoyment of the income from the trust while he refuses to support his dependents whom it is his duty to support. The claim of a wife and dependent children to support is based on the clearest grounds of public policy.”
Id. at 661.
The Court of Appeals has also held that a child support creditor should be permitted to breach spendthrift protection. In Zouck v. Zouck, 204 Md. 285 (1954):
“We find then that the agreement by a parent to support a child…constitutes an obligation which justifies the invasion of a spendthrift trust for its fulfillment. The public policy which underlies this holding certainly does not run counter to the recent trend of public policy in related matters.”
Id. at 300.
While nationally there may be a trend to permit breaches of spendthrift provisions to satisfy alimony and/or child support, it is rare for a court to permit tort creditors access to trust funds governed by spendthrift provisions. In Sligh v. First Nat’l Bank, 704 So. 2d 1020 (Miss. 1997) the Mississippi Supreme Court permitted a tort creditor to enforce such a judgment. This decision sparked national controversy and was legislatively reversed in Mississippi the following year with the Family Trust Preservation Act to exempt spendthrift trusts from tort creditors. Miss. Code Ann. § 91-9-503 (1998).
In Maryland, the Court of Appeals refused to extend the class of claims that may breach a spendthrift trust to include claims by tortfeasors. The facts underlying Duvall v. McGee, 375 Md. 476 (2003), are egregious. The beneficiary of a spendthrift trust was convicted of felony murder. The estate of the victim brought suit to enforce its judgment against the trust. The Court distinguished “a mere judgment creditor” from a spouse or child to whom a beneficiary owes a “duty” of support: “Indeed, to permit the invasion of the Trust to pay the tort judgments of the beneficiary, in addition to thwarting the trust donor’s intent by, in effect, imposing liability on the Trust for the wrongful acts of the trust beneficiary, is, as the appellees argue, to create an exception for “tort victims” or “victims of crimes.” Comment a. to Restatement 3d (2003) § 59 takes a different position: “The nature or pattern of tortious conduct by a beneficiary, for example, may on policy grounds justify a court’s refusal to allow spendthrift immunity to protect the trust interest and lifestyle of that beneficiary, especially one whose willful or fraudulent conduct or persistently reckless behavior causes serious harm to others.”
