Trusts for the ‘Modern Family’

March 30, 2017

Medical advances in reproductive technology and a wider acceptance of the changing, fluid form of what constitutes a ‘family’ through the introduction of civil partnership and same sex marriage have left legislators facing questions over the interpretation of various acts.

A question mark has been placed over the status of illegitimate children born to same sex parents out of wedlock, children born through non-traditional routes such as surrogacy to both same sex couples and those of the opposite sex, children born of polygenetic conception through the fusing of genetic material from three persons and finally those in same sex unions.

Where these questions have been addressed the response has varied from jurisdiction to jurisdiction, but the reality is that in many cases they remain unanswered, instead being dealt with ad-hoc on a case by case basis.

Trust law has found itself centre stage when it comes to the interpretation of the ‘modern family’. A trust may have been established decades ago, long before the concepts of same-sex partnerships and polygenetic conception were even visualised as forming the constitution of a family unit. So how then does the age old trust adapt to reflect societal changes?

The answer is rather simple in this particular area of law. The trust is a flexible concept, subject to few conceptual and policy based minimal requirements, but as a whole it is a broadly flexible and laissez-faire doctrine of law. The concept of the trust is to allow an individual autonomy on the way in which their affairs will be administered upon their death and going forward. It is particularly useful for those with large estates, allowing determination of how this wealth will be shared within a family or otherwise for future generations. The idea behind this extends the meaning of family to those yet unborn, by bestowing a wide power of appointment and investment on the trustees for the period of the trust. This ensures that whatever fresh challenges and modern changes face the trustees, they will be perfectly equipped to deal with them.

Perhaps one of the most divisive, contentious issues of the legal landscape within the last decade has been that of same-sex unions. Even in jurisdictions where same-sex marriage and/or civil partnerships have been legalised the issue has split both religious and political opinion. That said trust law remains largely unaltered to take account of modern changes to the law. Even in jurisdictions where same sex unions do not have legal standing nothing precludes a settlor from stipulating who shall benefit under a trust.

As far as illegitimacy is concerned the approach of most common-law jurisdictions is simply to eradicate any distinction between the child born out of wedlock and those born legitimately. This is reflected in the obligation to pay maintenance and succession of property, as far as social rules are concerned. It is generally accepted in UK practice that terms such as ‘child’ and ‘issue’ are intended to include illegitimate children by definition, subject to contrary intention. It would therefore be the responsibility of the settlor to preclude the illegitimate child, as opposed to including them actively.

Both surrogacy and polygenetic conception raise the issue of the third biological parent. The difference between the two is that, with surrogacy the mother is not genetically related to the child, whereas with the latter all three parents are genetically related to the child. Where the trust is concerned it is again a matter of drafting the settlor’s preference in a wide enough manner to incorporate all three parents.

It would seem logical to conclude that the real question of flexibility and breadth is to be asked by the solicitor whom is drafting the trust. Despite the changes in society the trust remains capable to deal with and endure all manners of interpretation of the ‘Modern Family’.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.