Article: Fiduciary Governance Without Beneficiaries

Trusts increasingly operate at the boundary between private ordering and public law. In the wake of Dobbs v. Jackson Women’s Health Organization and the spread of state fetal-personhood regimes, settlors and fiduciaries now confront the possibility that embryos or other unborn entities may be treated as legally cognizable beneficiaries. At the same time, trust law has moved toward increasingly privatized governance, most prominently through silent trusts and proxy-based administration that limit beneficiary knowledge and judicial oversight. Together, these developments press trust law to confront a form of beneficiary uncertainty that concerns not only when an interest will attach, but whether it will ever attach to a determinate person at all. This Article examines the interaction of these developments through the lens of recent changes to trust law in Delaware, a leading jurisdiction that other states are likely to follow. 

The Article makes three claims. First, existing trust law already accommodates embryonic beneficiaries without doctrinal innovation, given longstanding tools for administering future and contingent interests. Second, the existence of embryonic beneficiaries raises the question of whether (and how) a beneficial interest can exist where attachment to an identifiable beneficiary may never emerge. This unknowability, combined with silent trust regimes, produces a form of fiduciary governance characterized by ontological indeterminacy rather than mere temporal delay. Third, the normalization of proxy-mediated enforcement under these conditions reconfigures institutional justification of fiduciary obligation by severing fiduciary power from beneficiary-centered accountability. 

By shifting attention away from debates over fetal status and toward the design of fiduciary governance, the Article shows how silent-trust architecture functions as a private-law response to expanding biological contingency. It concludes that the convergence of fetal-personhood regimes with silent trusts exposes a broader legitimacy problem for fiduciary law in an era of privatized governance and sustained non-knowledge.