If I feel I’m a “victim” of a special needs trust so to speak, is there any way to contest such a trust when it contains a “no contest” clause?

My dad passed away 2 years ago, and left his estate to my sister my brother and I. We’re all on disability but my sister was given her share of the “inheritance” as a gift because she’s technically retired, not on disability. My brother is receiving SSI benefits so his benefits are means tested. I’m on Social Security Disability, which is not means tested. My dad decided to put my share of the inheritance and my brother’s share (for good reason) in a speical needs trust. In my case, it’s totally unnecessary. Can I successfully contest this if it has a “no contest” clause?

Asked on July 13, 2012 under Estate Planning, California


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

I would take the trust document to an attorney to review under the laws in your state.  You are correct that Social Security Disability is not means tested. But if it is possible that you could indeed end up on some other form of governmental assistance then you may indeed want to consider leaving the trust as is.  Good luck.

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