Elizabeth Valentin (New York School of Law) recently published Discretion and Dependency: Revisiting Lawrence Frolik’s Critique of Discretionary Trusts for Disabled Beneficiaries, 2026. The article is to be featured in University of Pittsburgh Law Review, Volume 87, No. 4, pp. 971-1007 (2026). Provided below is the Abstract:
This Article revisits Lawrence Frolik’s influential 1985 critique of discretionary trusts for disabled beneficiaries and evaluates its continuing relevance in an era of special needs trusts, pooled trusts, ABLE accounts, and extensive administrative regulation. Although statutory reform, administrative guidance, and evolving judicial oversight have transformed disability planning over the past four decades, this Article argues that the tensions identified by Frolik remain. Administrative uncertainty has been reduced, trustee discretion has been increasingly tempered by regulatory and judicial constraints, and new planning mechanisms have expanded available options. Yet disabled beneficiaries continue to depend on private fiduciary arrangements to secure resources and opportunities beyond those provided by means-tested public benefits programs.
Drawing on trust law, public benefits law, and disability policy, the Article argues that developments such as OBRA ’93, pooled trusts, and ABLE accounts are best understood not as complete solutions to the problems identified by Frolik, but as mechanisms for managing enduring tensions among beneficiary welfare, autonomy, fiduciary discretion, and public benefits administration. This Article reframes discretionary trusts as instruments of governance operating at the intersection of private wealth and public welfare and argues that their continuing significance lies in revealing a deeper structural reality: even after four decades of reform, disability planning remains dependent on private governance structures and private supplementation to achieve outcomes that public benefits alone do not provide.