Delaware Trust Act 2025: Key Changes & Updates Explained

Delaware’s Trust Act 2025 (the “Act”) was signed into law by Governor Meyer on August 21, 2025. Please see below for a summary of some of the key statutory changes.

Non-Charitable Purpose Trusts

The Act updates various Code sections pertaining to non-charitable purpose trusts (“purpose trust(s)”). As the name implies, a purpose trust is structured with an intent to carry out a particular purpose rather than benefit individual, or classes of, beneficiaries. There are a wide array of potential uses for a purpose trust, ranging from the care of a particular asset or collection of assets (such as artwork, guns or automobiles) to holding voting shares in a private company (for example, Patagonia, Inc. –  a private company whose voting shares were placed in a purpose trust in 2022 to ensure the company’s initiatives and governance align with the founder’s vision in perpetuity), to preserving cryogenic biological materials.

Section 3556 of Title 12 now contains language expressly stating that a person is not deemed to be a beneficiary of a purpose trust solely because that person receives a distribution from the trust in furtherance of the declared purpose. 

Section 3556 also now includes a defined term for “enforcer” and allows the governing instrument of a purpose trust to grant an enforcer exclusive standing to enforce the terms of the trust. The enforcer is deemed to be a fiduciary unless the governing instrument states otherwise, and any person who accepts an appointment as enforcer agrees to submit to the personal jurisdiction of Delaware. Further, an enforcer can act as an “interested person” for purposes of a nonjudicial settlement agreement under Section 3338 of Title 12 or a nonjudicial modification under Section 3342 of Title 12 if there are no identifiable beneficiaries of the purpose trust.

Other sections in Title 12 were updated in relation to the new defined enforcer position, including adding the enforcer: (i) in the definition of “fiduciary” in Section 3301(d), (ii) in the definition of “officeholder” for purposes of resignation pursuant to statutory authority if not available under a trust instrument (see Section 3326) and (iii) in the broad definition “trustee” for purposes of Subchapter VII (see Section 3580 et seq) addressing liability of trustees and other fiduciaries.

Trustees Exercise of Discretion

The Act also updates Section 3315 of Title 12, which governs the rights of beneficiaries when a trust confers discretion over distributions to a trustee. In 2021, this Section was revised to clarify the fact that a discretionary interest in a trust is merely an expectancy and not a property right that can be enforced by a beneficiary’s creditor. The Act adds express language to clarify that, because the beneficiary holds only an expectancy, that beneficiary cannot compel a distribution from the trust.

Resignation of Officeholders

Prior to the Act going into effect, under Section 3326 of Title 12, an “officeholder” (i.e., a Trustee, Direction Adviser, Trust Protector or a Designated Representative), could resign its position (i) pursuant to the terms of the trust’s governing instrument, or (ii) if the governing instrument was silent with respect to the officeholder’s power to resign, but established a procedure for the appointment of a successor officeholder, then upon 30 days written notice to the trust’s beneficiaries, those parties holding the power to appoint a successor officeholder, and any other officeholders. In all other cases, the officeholder could effectively resign by receiving approval from the Court of Chancery.

The Act now expressly provides that an officeholder can effectively resign by a trust modification under Section 3342 of Title 12, if the grantor of the trust is living. If options (i) or (ii) noted in the preceding paragraph are not available and the grantor is no longer living, the Act also now expressly states that a nonjudicial settlement agreement under Section 3338 of Title 12 can be used to effectuate the officeholder’s resignation without needing to obtain approval from the Chancery Court.

The additions to Section 3326 provide solutions for interested parties to a trust instrument that does not contain language concerning the resignation or appointment of officeholders.

Disposition of Marital Property

Finally, the Act updated Section 1513 of Title 13, specifically, updating the definition of “marital property” to clarify that, when one spouse (the donor spouse) makes a gift in trust of which the other spouse (the donee spouse) is a beneficiary, the donee spouse’s beneficial interest in the trust established by the donor spouse is not considered marital property unless the trust instrument provides otherwise. 

Commonwealth Trust Company is pleased to provide this article as a guide. Commonwealth Trust Company is not engaged in the practice of law and is not providing legal advice by the provision of these materials. Commonwealth Trust Company recommends that clients seek the opinion of their attorney regarding the specific legal and tax issues addressed in this article.