Delaware Code Title 12 Sec. 3536A – Release of beneficial interests by beneficiaries
(a) Subject to the limitations and conditions of subsections (b) through (f) of this section, a beneficiary of a trust may, in whole or in part, release such beneficiary’s beneficial interest in the trust, including any discretionary power of withdrawal or consumption, with or without consideration, with respect to the whole or any part of the property subject to such interest.
Terms Used In Delaware Code Title 12 Sec. 3536A
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Court: means the Court of Chancery. See Delaware Code Title 12 Sec. 39A-101
- Fiduciary: A trustee, executor, or administrator.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Guardian: is a "guardian of the person" as that term is used in this title. See Delaware Code Title 12 Sec. 39A-101
- Party: means the respondent, petitioner, guardian, conservator, or any other person allowed by the Court to participate in a guardianship or protective proceeding. See Delaware Code Title 12 Sec. 39A-101
- Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC
- Trustor: The person who makes or creates a trust. Also known as the grantor or settlor.
(b) A beneficiary may not release any condition in the governing instrument with which a beneficiary must comply to be eligible to receive a distribution from the trust.
(c) This section does not apply to or supersede the following subjects under the following provisions of this Code:
(1) An interest that may be disclaimed, or a power that may be disclaimed or released, under Chapter 6 of this title;
(2) A beneficiary’s right to release, assign, or dispose of an interest in a trust under § 3536(b) or (e) of this title; or
(3) The release of a power of appointment under § 502 of Title 25.
(d) A beneficiary of a trust may not release such beneficiary’s interest if the terms of the governing instrument expressly prohibit such release; provided, however, that for purposes of subsection (e) of this section, a prohibition in the nature of a spendthrift provision or similar provision of the governing instrument does not constitute such an express prohibition of such a release.
(e) A beneficiary of a trust having spendthrift provisions or similar protective provisions applicable to the beneficiary may not release the beneficiary’s interest in the trust’s income or principal of the trust, unless—as a result of the beneficiary’s being treated under subsection (h) of this section as having died or having ceased to exist because of the beneficiary’s release, as applied to the terms of the trust’s governing instrument—such released income or principal will be distributed to or held in further trust for 1 or more of the trustor‘s descendants (other than the releasing beneficiary) or the releasing beneficiary’s descendants.
(f) No release of an interest in a trust shall be deemed to make imperative—that is, convert a beneficial interest into a power that a beneficiary has a fiduciary duty to exercise—an interest that was not imperative before such release unless the governing instrument expressly so provides.
(g) To be effective, the release of an interest under subsection (a) of this section must:
(1) Be in a writing, which writing must declare that the releasing party is releasing the interest absolutely and unconditionally;
(2) Declare the scope of the release, i.e., specify whether the release is with respect to the whole or any part of the property subject to such interest;
(3) Describe the interest released;
(4) Be signed by:
a. The releasing party;
b. A designated representative on behalf of the releasing party under § 3339 of this title, but only to the extent such designated representative is a fiduciary with respect to the releasing party or is otherwise expressly so authorized under the terms of the trust’s governing instrument to release such interest;
c. An agent under a power of attorney, but only to the extent expressly authorized by the power of attorney or the terms of the trust’s governing instrument; or
d. The guardian of the releasing party’s property (or similar court-appointed representative) with the approval of the court supervising the guardian (or similar court-appointed representative); and
(5) Be delivered to all then-serving fiduciaries of the trust and to any person designated in the trust’s governing instrument to receive a release.
(h) Unless otherwise specified in the trust’s governing instrument, a full or partial release under this section of any interest in a trust results in the releasing party being treated for purposes of the trust as having died or ceased to exist as of the time the release becomes effective, but only with respect to the interest so released.