Massachusetts Amends Law Governing Rights of Adopted Children as Beneficiaries of Trusts

On January 15, 2009, Governor Patrick signed into law an amendment to chapter 210, section 8 of the Massachusetts General Laws, which governs the rights of adopted children as trust and estate beneficiaries. Under current law, an adopted descendant is presumed to be a beneficiary of a will or intervivos trust executed after August 26, 1958 unless the terms of the instrument plainly indicate the settlor’s or testator’s intent to exclude adopted descendants. The new law provides that an adopted descendant is presumed to be a beneficiary regardless of when a will or intervivos trust was executed. The presumption can still be rebutted, however, by the terms of the instrument. The amendment to chapter 210 takes effect on April 15, 2009. It does not apply, however, to distributions made before May 1, 2009, from testamentary trusts established under wills executed prior to September 1, 1969.

This amendment represents a sea change in the administration of trusts and wills executed prior to August 26, 1958, and raises a number of issues for the trustees of these trusts. For example, it is not uncommon for a beneficiary of a pre-1958 trust to make special provisions for adopted descendants in his or her estate plan to compensate for the fact that the adopted descendants are not considered beneficiaries of the trust. While living and competent, a beneficiary may be able to revise his or her estate plan in light of the new law, but gifts that have been made to adopted descendants and irrevocable trusts established for their benefit may have the unintended effect that adopted descendants will receive more than biological descendants.

A trustee of a pre-1958 trust is confronted with the following issues, among others:

• What is his duty to inform beneficiaries of the change in the law?
• To whom does this duty extend?
• What information should be provided to the beneficiaries?
• What information should the trustee gather with regard to adopted children?
• Should distributions be made prior to the effective date of the new law in order to promote parity among biological and adopted descendants?