Section 51 Subdivision (5)

• Library: Trust and Estate Legislation 2012

The exercise of such authority may not reduce any income interest of any income beneficiary of any of the following trusts:

(a) A trust for which a marital deduction has been taken for federal tax purposes under Section 2056 or 2523 of the Internal Revenue Code or for state

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tax purposes under any comparable provision of applicable state law;

(b) A charitable remainder trust under Section 664 of the Internal Revenue Code;

(c) A grantor retained annuity trust under Section 2702 of the Internal Revenue Code; or

(d) A trust which has been qualified as a Subchapter S trust under Section 1361(d) of the Internal Revenue Code or an electing small business trust under Section 1361(e) of the Internal Revenue Code;

Section 456.4-419.2(5), RSMo Supp. 2011.

As discussed above in §46, § 456.4-419.6 states that the ability to decant existed in common law before the enactment of this statute but that the statute both limits and expands the common-law right. Subdivision (5) contains some of these limitations. Its purposes are twofold:

1. To protect against a claim by the IRS that the mere existence of the power to decant might disqualify certain tax-driven planning...