Children Supporting Themselves? How Sparring Parties in Support Disputes Seek to Use the Family Code to Bypass Trust Protections for Beneficiaries

Michael S. Brophy and Sara Z. May

Michael S. Brophy is a partner in the trust, estate and inheritance disputes team at international law firm Withers and is the U.S. Regional leader of the Private Client and Tax Division. Michael has extensive experience representing individuals, families, charities, corporate trustees, private professional fiduciaries and creditors in litigation involving complex trusts and estates. Michael’s diverse practice includes will and trust contests, accounting and business disputes, breach of duty actions, elder abuse and conservatorship disputes, document interpretation matters, and other contested probate and fiduciary-related matters.

Sara Z. May is an associate in the trust and estate litigation team at Withers and is based in the Los Angeles office. Sara’s practice focuses on complex trusts and estates litigation, trusts and estate administration, and conservatorship and guardianship matters. She advises high net worth clients in family law matters including property issues, spousal support, child support and custody.

California family courts have broad powers under the Family Code to consider the nature of assets held directly or indirectly for the benefit of spouses and parents when determining the amount and source of support obligations. Those powers are tested, however, when the assets in question are held in trust structures governed by the California Probate Code and other state trust laws. While the law is clear on how to handle certain types of trusts in certain situations, such as when a spouse holds assets in a revocable trust for his or her own benefit, it is often less clear to family law practitioners on how the court might consider other trust assets, such as those held irrevocably for the benefit of the children in adversarial support proceedings.