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With the increased proliferation of spousal trusts in both lifetime and testamentary planning, 2022 provides a pivot point to re-think how we add flexibility to these trusts, while preserving their most important elements. In particular, with spousal lifetime access trusts, of which spousal insurance trusts are a subspecies, marital trusts (all of which should be qualified terminable interest property (QTIP) trusts in 2022 and going forward) and credit shelter trusts (structured as QTIP-compliant to permit future portability decisions), preserving the tax benefits of these trusts requires limiting the surviving spouse, while acting as trustee, to an ascertainable standard (essentially one relating to health, education, maintenance and su...
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