Thursday, June 11, 2026
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Court of Appeal:
Survival Clause Insufficient to Disinherit Grandchildren
Opinion Says Provision That Party Will Be Deemed to Have Died First by Not Outliving Decedent by 30 Days Is Not Enough to Render Presumption Underlying California’s Anti-Lapse Statute Inapplicable
By Kimber Cooley, associate editor
Div. Seven of this district’s Court of Appeal has held that a survival clause in a woman’s revocable living trust naming her three children as beneficiaries, but providing that a child who did not survive her by more than 30 days would be deemed “for all purposes” to have died before her, was insufficient to overcome California’s anti-lapse statute and cut-off inheritance by the children of a son who predeceased her.
The opinion marks the second published decision to address the interplay between such a so-called “survival clause” and California’s anti-lapse law, found at Probate Code §21110, which provides that, “if a transferee…fails or is treated as failing to survive the transferor…, the issue of the deceased transferee take in the transferee’s place” unless “the instrument expresses a contrary intention or a substitute disposition.”
Justice Gail Ruderman Feuer authored Tuesday’s decision, joined in by Presiding Justice Gonzalo Martinez and Los Angeles Superior Court Judge Alexander C.D. Giza, sitting by assignment, saying:
“The survivor provision states in relevant part, ‘[I]f any person named herein fails to survive a settler for thirty days, for all purposes of this trust, the person shall be considered to have predeceased the settlor.’…It does not state, explicitly or implicitly, that a gift or transfer is conditioned on the beneficiary surviving the settlor; rather, it merely establishes circumstances in which a beneficiary who survives the settlor will be deemed nonetheless to have predeceased her.”
2003 Decision
Acknowledging the 2003 decision by this district’s Div. Six in Burkett v. Capovilla—which found that a clause specifying that “the beneficiary must survive for sixty (60) days before entitlement to…gifts” under the instrument cut against enforcement of the anti-lapse provision to save the inheritance by the children of the settlor’s deceased daughter—but said:
“The Burkett provision expressly addressed gifts and used mandatory survival language; the Trust [at issue] did neither.”
Recognizing that “our analysis is not limited to whether the survivor provision, standing alone” could be said to evince a contrary intent to the default position established in §21110, Feuer noted that the deceased son was listed as the exclusive transferee of certain real estate held by the trust, and the document “contained no alternative disposition or residuary clause.” Under these circumstances, she opined:
“[W]e must give preference to an interpretation of the…Trust ‘that will prevent intestacy or failure of a transfer, rather than one that will result in an intestacy or failure of a transfer.’…Without the anti-lapse statute, the transfer would fail and the Santa Monica property would revert to [the] estate, and it appears (absent evidence of a will) that the property would be distributed through intestacy laws.”
Summary Adjudication
Tuesday’s decision reverses a December 2024 order by Los Angeles Superior Court Judge Daniel Juarez granting summary adjudication to a surviving child of Ya-Ching Tung, who established a revocable living trust for the benefit of her three offspring in 2011. Under the terms of the instrument, Tung’s son, Lin-Chuan Yeh, was to inherit her interest in “all real property” and would receive half of the proceeds from “all bank accounts where no beneficiary is listed.”
Tung’s two daughters would each receive a portion of the bank account holdings. The trust did not provide for any alternative disposition or include a residuary clause and failed to reference Tung’s three adult grandchildren by way of Yeh, who died in July 2016.
After Tung died in May 2019, one of Tung’s daughters, who was serving as the temporary successor trustee, filed a petition seeking a determination that the transfer of property to Yeh failed because he predeceased their mother.
Over the grandchildren’s objection, Juarez ruled that §21110 did not preserve the transfer of property to Yeh for the benefit of his descendants, saying that the use of the phrase “for all purposes of this trust” rendered “the anti-lapse statute inapplicable to the case” and that “I’m having a hard time reconciling what this section means otherwise.”
Appealable Order
In a footnote, Feuer pointed out that the court had denied a motion to dismiss the appeal in June 2025, commenting that “[t]he…December 31, 2024 order constituted a final resolution of a discrete ‘proceeding concerning the internal affairs of a trust’ to ‘[a]scertain[] beneficiaries and determin[e] to whom property shall pass or be delivered upon final or partial termination of the trust’…, which was an appealable order.”
Saying that “[w]e agree” with the grandchildren that “the probate court erred in holding that the survivor provision…constituted a ‘contrary intention’ under section 21110…to override the [anti-lapse] statute,” she remarked:
“The probate court reasoned that the survivor provision in the Tung Trust must be interpreted to create a survival requirement, because the court could not find any other sections in the trust to which the provision ‘could or would otherwise apply’ besides limiting the transfers to Tung’s children…and the court could not ‘reconcile it in any other way.’ The court’s reasoning is not persuasive.”
She opined that, “[a]lthough courts must give effect to each provision when possible…, it is clear the Tung Trust includes ‘miscellaneous’ provisions…that are boilerplate with no evident application to other sections of the Tung Trust or to Tung’s circumstances at the time she established the trust” and said:
“[T]he inclusion of this boilerplate language certainly does not mean we must interpret a boilerplate provision unreasonably….If Tung intended for the transfer to [Yeh] to fail if he predeceased her (or if he survived her by only 29 days), she could have simply and unambiguously modified [the clause] to say ‘[a]ny and all real property’ would be distributed ‘to settlor’s son Yeh, Lin-Chuan, unless he does not survive Tung.’ ”
Reasons for Inclusion
Adding that “[c]ontrary to the probate court’s concern, there are reasons why Tung might have included [the] paragraph…to implement her estate plan that have nothing to do with an intent to override the [anti-lapse] statute,” she wrote:
“Tung may have been particularly concerned about challenges to the trust, and she may have wished to avoid disputes over whether a specific beneficiary died before or after she did. What if, for example, Tung and [one of her daughters who had no children] were killed in a car crash, and their bodies were later recovered from the vehicle? [The daughter’s] heirs—who cannot invoke [§21110] because [she] had no issue—would have an incentive to try to establish that Tung died first (otherwise, [their putative] share would revert back to [the] estate under section 21109).”
Noting that “[s]eemingly far-fetched…scenarios like this are not confined to bar examinations,” she pointed out that California adopted the Uniform Simultaneous Death Act in 1945 to address certain inheritance issues that follow a common accident that kills multiple family members. She added:
“Whatever the purpose of the survivor provision, we must assume Tung understood California’s [anti-lapse] statute at the time she established the…Trust….In other words, Tung expected the Yeh children would receive the Santa Monica property (and cash) if Lin-Chuan did not survive Tung, but the cash transfers to Tung’s daughters without issue would lapse under section 21009….In this light,…it is far more reasonable to infer she was trying to reduce any uncertainty and the risk her 2011 distribution plan would be challenged.”
The case is In re Tung Trust, 2026 S.O.S. 1685.
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