§ 3595 — Abatement of gifts in trust

(a) Except as provided in subsection (b) of this section, shares of distributees of an inter vivos trust, who are entitled to distributions from the trust as of the date of the death of the trustor, abate, with personal property to be abated prior to real property within each class, in the following order:

(1) Property owned by the trust not disposed of by the trust instrument.

(2) Residuary gifts under the trust instrument.

(3) General gifts under the trust instrument.

(4) Specific gifts under the trust instrument.

For purposes of abatement, a general gift charged on any specific property or fund is a specific gift to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general gift to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property that each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the trust instrument.

(b) If the trust instrument expresses an order of abatement, or if the overall plan of distribution at the trustor’s death or the express or implied purpose of the gift would be defeated by the order of abatement stated in subsection (a) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the trustor.

(c) If the subject of a preferred gift is sold or used incident to administration of the trust, abatement shall be achieved by appropriate adjustments in, or contributions from, other interests in the remaining assets.

Legislative History

75 Del. Laws, c. 299, § 4