How California’s Anti-Lapse Statute Defeated a Trust’s Survivorship Provision

Private Wealth Services attorney Madeleine Vasily authored an article published in the Daily Journal analyzing the California Court of Appeal's decision in In re Tung Trust Dated October 24, 2011, which addressed whether a standard survivorship provision can override California’s anti-lapse statute. The article explains that the court held a provision deeming a beneficiary to have predeceased the settlor if they fail to survive by 30 days does not, by itself, establish the "contrary intention" required to defeat Probate Code section 21110. Madeleine highlights the court’s distinction between language that merely treats a beneficiary as having predeceased a settlor and language that expressly conditions a gift on survival. The article also outlines key drafting lessons for estate planners, including the importance of clearly conditioning gifts on survival, specifying alternative dispositions, carefully placing survivorship provisions within trust documents and reviewing boilerplate language to ensure it aligns with the client’s intent. She notes that the decision reinforces the need for precise drafting to avoid unintended application of California’s anti-lapse statute and potential partial intestacy.

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