2023 Delaware Code
Title 12 - Decedents' Estates and Fiduciary Relations
Chapter 35. TRUSTS
Subchapter VI. Qualified Dispositions in Trust
§ 3573. Limitations on qualified dispositions.
(a) With respect to the limitations imposed by § 3572 of this title, those limitations on actions by creditors to avoid a qualified disposition shall not apply:
(1) To any person to whom the transferor is indebted on account of an agreement or order of court for the payment of support or alimony in favor of such transferor's spouse, former spouse or children, or for a division or distribution of property incident to a judicial proceeding with respect to a separation or divorce in favor of such transferor's spouse or former spouse, but only to the extent of such debt; or
(2) To any person who suffers death, personal injury or property damage on or before the date of a qualified disposition by a transferor, which death, personal injury or property damage is at any time determined to have been caused in whole or in part by the tortious act or omission of either such transferor or by another person for whom such transferor is or was vicariously liable but only to the extent of such claim against such transferor or other person for whom such transferor is or was vicariously liable.
(b) Paragraph (a)(1) of this section shall not apply to any claim for forced heirship, legitime or elective share.
(c) Paragraph (a)(1) of this section shall not apply to a transferor's spouse, and the limitations imposed by § 3572 of this title shall apply, with respect to each qualified disposition made by the transferor if the following requirements are met:
(1) The following information and documents are delivered to the transferor's spouse before the qualified disposition is made:
a. A written instrument providing notice of the qualified disposition as described in paragraphs (c)(2)a. through (c)(2)c. of this section and consent to the qualified disposition as described in paragraph (c)(2)d. of this section that is executed as provided in paragraph (c)(2)e. of this section;
b. A copy of the Qualified Dispositions In Trust Act, this subchapter; and
c. A copy of the governing instrument of the trust that is the subject of the qualified disposition, a list of the property that will be the subject of the qualified disposition, disclosure of all material information relating to the value of such property, a reasonable estimate of the value of such property, and the basis for such estimate;
(2) The written instrument referred to in paragraph (c)(1) of this section must:
a. Contain the following statement, in capital letters:
YOUR SPOUSE IS CREATING OR HAS CREATED AN IRREVOCABLE TRUST INTO WHICH PROPERTY IS BEING TRANSFERRED. A COPY OF THE TRUST INSTRUMENT THAT WILL GOVERN OR GOVERNS SUCH IRREVOCABLE TRUST IS ANNEXED HERETO AS AN EXHIBIT. THE PROPERTY THAT IS TO BE TRANSFERRED TO THE IRREVOCABLE TRUST, WHICH IS THE SUBJECT OF A PROPOSED DISPOSITION UNDER DELAWARE'S QUALIFIED DISPOSITIONS IN TRUST ACT (12 Del. C. §§ 3570 et seq.), IS AS FOLLOWS:
_______________. THE ESTIMATED VALUE OF SUCH PROPERTY IS _______________. YOUR CONSENT TO YOUR SPOUSE'S TRANSFER TO THE TRUST DESCRIBED HEREIN IS IRREVOCABLE AND YOUR RIGHTS TO THIS PROPERTY AS A SPOUSE OF THE TRANSFEROR WILL BE AFFECTED DURING YOUR MARRIAGE, UPON DIVORCE (INCLUDING THE PAYMENT OF ALIMONY OR A DIVISION OR DISTRIBUTION OF PROPERTY IN A DIVORCE), OR AT THE DEATH OF YOUR SPOUSE.b. Contain a list of the property that will be the subject of the qualified disposition;
c. Contain a reasonable estimate of the value of such property;
d. Contain the consent of the transferor's spouse, which consent may be with or without consideration, to the qualified disposition; and
e. Be signed by the transferor's spouse and witnessed in writing by someone other than the transferor or any person related or subordinate to the transferor within the meaning of § 672(c) of the Internal Revenue Code of 1986 (26 U.S.C. § 672(c)).
