I am not confused. As I said, whether the trust is part of his estate is irrelevant. In the state of California, a family court judge is permitted to considered ANY source in order to calculate child support. At least in this state, mother and children always come first. Otherwise, anyone can set up an irrevocable trust or even a gift to others to avoid child support obligations. The law is not stupid.
In California, for child support purposes, a trust is presumed revocable unless the trust specifically says irrevocable. Again from my recollection, there is no trust document in this case, except the title was written as xxx property held in trust, with yyy as trustee, for benefits of zzz.
Legally, a trust is never a part of estate unless the settlor revoked the trust at some point of time. Trust is a device to manage one's estate such that it can bypass the probate process like a will. That is why I said whether the trust is part of the estate is irrelevant.
For example, in the case Marriage of Perry, the settlor died, leaving everything to a trust. The trustee claimed the settlor's child support obligation terminated post-mortem. The court, in its ruling, asked the question what happened to child support when NO probate estate existed after supporting parent's death. The court was not fooled by the fact that there was no estate but a trust created by the supporting parent, with his parents and siblings as beneficiaries. The court held, there is no difference in terms of child support, between an estate and property held by a living trust. The court also held, for child support purposes, the supporting parent's "estate" includes property put into a living trust. The court would give the broadest meaning of "estate" and disregard the techinicality difference between a trust and a will (estate). Neither a will nor a trust will shield the decedent from his or her child support obligations.
As a matter of fact, a court would even override any provisions in a trust, such as a spendthrift clause, to fulfill settlor's support obligation. See Taylor v George. An crease in child support post-mortem could be allowed. Family court has the jurisdiction over this matter.
As I said before, this is not intended to be legal advice and this discussion is solely based on california law.
