Trustee’s Discretion to Provide for Support and Maintenance Creates Support Trust

The husband’s testamentarytrust gives all income to his surviving spouse but allows the trustee towithhold income if he determines that the spouse has “adequate other income”and also allows the trustee to distribute principal to the spouse if hedetermines invasion necessary to provide for the spouse’s “proper support andmaintenance.”  In Inre Decision of Com’r of Human Services in Appeal of Flygare for MedicalAssistance, 725 N.W.2d 114 (Minn. Ct. App. 2006), the court held thatthis language created a support trust rather than a discretionary trust andthat the trust therefore was an available resource for determining the spouse’seligibility for medical assistance.