2023 Tennessee Code › Title 35 - FIDUCIARIES AND TRUST ESTATES (§§ 35-1-101 — 35-50-125) › Chapter 16 - TENNESSEE INVESTMENT SERVICES ACT OF 2007 (§§ 35-16-101 — 35-16-112) › Section 35-16-104 - Restrictions on actions, remedies and claims

(a)
Notwithstanding any law to the contrary, no action of any kind, including, but not limited to, an action to enforce a judgment entered by a court or other body having adjudicative authority, shall be brought at law or in equity for an attachment or other provisional remedy against property that is the subject of a qualified disposition to an investment services trust or for the avoidance of a qualified disposition to an investment services trust, unless the action is brought pursuant to the Uniform Fraudulent Transfer Act, compiled in title 66, chapter 3, part 3, and, in the case of a creditor whose claim arose after a qualified disposition, unless the qualified disposition was also made with actual intent to defraud such creditor.
(b)
(1)
Notwithstanding §
66-3-310
, a creditor's claim under subsection (a) shall be extinguished:
(A)
If the person is a creditor when the qualified disposition to an investment services trust is made, unless the action is commenced within the later of eighteen (18) months after the qualified disposition is made or six (6) months after the person discovers or reasonably should have discovered the qualified disposition; or
(B)
If the person becomes a creditor after the qualified disposition to an investment services trust is made, unless the action is commenced within eighteen (18) months after the qualified disposition is made.
(2)
If subdivision (b)(1) applies:
(A)
A person shall be deemed to have discovered the existence of a qualified disposition to an investment services trust at the time any public record is made of any transfer of property relative to such qualified disposition, including but not limited to, the conveyance of real property that is recorded in the office of the county register of deeds of the county in which the property is located or the filing of a financing statement under title 47, chapter 9, or the equivalent recording or filing of either with the appropriate person or official under the laws of a jurisdiction other than this state; and
(B)
No creditor shall bring an action with respect to property that is the subject of a qualified disposition unless that creditor proves by clear and convincing evidence that the settlor's transfer of such property was made with the intent to defraud that specific creditor.
(c)
For purposes of this chapter, a qualified disposition that is made by means of a disposition by a transferor who is a trustee shall be deemed to have been made as of the time, whether before, on or after July 1, 2007, the property that is the subject of the qualified disposition was originally transferred to the transferor acting in the capacity of trustee, or any predecessor trustee, in a form that meets the requirements of §
35-16-102(7)(B) and (C)
. The transferor's execution of a qualified affidavit creates a rebuttable presumption that the assets disclosed in the affidavit were transferred to the trust on the date of execution of the affidavit. The transferor bears the burden of proving by a preponderance of the evidence the date of transfer of any asset that is not listed on a qualified affidavit.
(d)
Notwithstanding any law to the contrary, a creditor, including a creditor whose claim arose before or after a qualified disposition, or any other person shall have only the rights with respect to a qualified disposition that are provided in this section and §
35-16-106
, and neither a creditor nor any other person shall have any claim or cause of action against the trustee, or an advisor of an investment services trust, or against any person involved in the counseling, drafting, preparation, execution or funding of an investment services trust. For purposes of this section, counseling, drafting, preparation, execution or funding of an investment services trust includes the counseling, drafting, preparation, execution and funding of a limited partnership or a limited liability company if interests in the limited partnership or limited liability company are subsequently transferred to the investment services trust.
(e)
Notwithstanding any law to the contrary, no action of any kind, including, but not limited to, an action to enforce a judgment entered by a court or other body having adjudicative authority, shall be brought at law or in equity against a trustee or an advisor of an investment services trust, or against any person involved in the counseling, drafting, preparation, execution or funding of an investment services trust, if, as of the date such action is brought, an action by a creditor with respect to the investment services trust would be barred under this section.
(f)
In circumstances where more than one (1) qualified disposition is made by means of the same investment services trust, then:
(1)
The making of a subsequent qualified disposition shall be disregarded in determining whether a creditor's claim with respect to a prior qualified disposition is extinguished as provided in subsection (b); and
(2)
Any distribution to a beneficiary shall be deemed to have been made from the latest qualified disposition.
(g)
If, in any action brought against an investment services trust, a court takes any action whereby the court declines to apply the law of this state in determining the effect of a spendthrift provision of the trust, the trustee of the trust shall immediately upon the court's action and without the further order of any court, cease in all respects to be trustee of the trust and a successor trustee shall succeed as trustee in accordance with the terms of the trust or, if the trust does not provide for a successor trustee and the trust would otherwise be without a trustee, a court of this state, upon the application of any beneficiary of the trust, shall appoint a successor trustee upon the terms and conditions it determines to be consistent with the purposes of the trust and this chapter. Upon the trustee's ceasing to be trustee, the trustee shall have no power or authority other than to convey the trust property to the successor trustee named in the trust in accordance with this section.
(h)
An investment services trust shall be subject to this section whether or not the transferor retains any or all of the powers and rights described in §
35-16-111
or serves as an investment advisor pursuant to §
35-16-109
.
(i)
(1)
Notwithstanding subsection (a) or (b) to the contrary, the limitations on actions by creditors in law or equity shall not apply and such creditors' claims shall not be extinguished if the transferor is indebted on account of an agreement, judgment or order of a court for the payment of one (1) of the following:
(A)
Past due child support;
(B)
Past due alimony in solido of a spouse or former spouse;
(C)
Past due alimony or support of a spouse or former spouse; or
(D)
A written agreement, judgment or order of a court for division of marital property of a spouse or former spouse, but only to the extent of such debt, legally mandated interest and the reasonable cost of collection.
(2)
(A)
A claim provided under this subsection (i) shall be asserted against a trustee only:
(i)
Upon a final nonappealable determination of a Tennessee court or a fully domesticated, final nonappealable order of a court of another state as defined by §
35-15-103
that such debt is past due; and
(ii)
After the court has determined that the claimant has made reasonable attempts to collect the debt from any other sources of the transferor or that such attempts would be futile.
(B)
Nothing in this subdivision (i)(2) shall be construed to prohibit the court from making the findings required in subdivisions (i)(2)(A)(i) and (ii) in the same proceeding and order.
(j)
Subsection (i) shall not apply to any claim for forced heirship, legitime or elective share.
(k)
In addition to subsection (j), to the extent subsection (j) applies to the laws of any foreign country:
(1)
For all purposes under this chapter, the effect of the laws of any foreign country shall be the same as provided in §
35-15-107(b)(3) and (4)
; and
(2)
Subsection (a) applies in addition to all other provisions of this chapter.
Amended by 2021 Tenn. Acts, ch. 420, Secs.s15, s21 eff. 7/1/2021.
Amended by 2013 Tenn. Acts, ch. 390, s 45, eff. 7/1/2013.
Acts 2007 , ch. 144, § 4; 2008 , ch. 1010, § 2; 2010 , ch. 725, §§ 14- 16.