Q: Does a special needs trust protect against tort liability? Does that protection remain after death?
A: It depends on a number of factors. If the money put into the trust was owned by the beneficiary at some point, then there is probably no protection. If the trust was funded with assets from a third party, such as a gift from a parent, then there might be protection if the trust document had a "spendthrift" provision. Even with a spendthrift provision, if the language of the trust was defective in other ways, such as if the beneficiary had too many rights to access the trust or if the trustee is the beneficiary, then that could have weakened the trust. In general, there is no right answer to this question. It would be up to the creditor to go to court and find the weaknesses in the trust language and convince a judge to make the assets accessible.
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