DIVISION 11. CONSTRUCTION OF WILLS, TRUSTS, AND OTHER INSTRUMENTS [21101. - 21700.]
Division 11 enacted by Stats. 1990, Ch. 79.
§§ 21101–21700 · 92 sections
PART 1. RULES FOR INTERPRETATION OF INSTRUMENTS §§ 21101–21140 · 25 sections
CHAPTER 1. General Provisions §§ 21101–21118 · 15 sections
- § 21101 Unless the provision or context otherwise requires, this part applies to a will, trust, deed, and any other instrument.
- § 21102 (a) The intention of the transferor as expressed in the instrument controls the legal effect of the dispositions made in the instrument. (b) The rules of…
- § 21103 The meaning and legal effect of a disposition in an instrument is determined by the local law of a particular state selected by the transferor in the…
- § 21104 As used in this part, “at-death transfer” means a transfer that is revocable during the lifetime of the transferor, but does not include a joint tenancy or…
- § 21105 Except as otherwise provided in Sections 641 and 642, a will passes all property the testator owns at death, including property acquired after execution of the…
- § 21107 If an instrument directs the conversion of real property into money at the transferor’s death, the real property and its proceeds shall be deemed personal…
- § 21108 The law of this state does not include (a) the common law rule of worthier title that a transferor cannot devise an interest to his or her own heirs or (b) a…
- § 21109 (a) A transferee who fails to survive the transferor of an at-death transfer or until any future time required by the instrument does not take under the…
- § 21110 (a) Subject to subdivision (b), if a transferee is dead when the instrument is executed, or fails or is treated as failing to survive the transferor or until a…
- § 21111 (a) Except as provided in subdivision (b) and subject to Section 21110, if a transfer fails for any reason, the property is transferred as follows: (1) If the…
- § 21112 A condition in a transfer of a present or future interest that refers to a person’s death “with” or “without” issue, or to a person’s “having” or “leaving”…
- § 21114 (a) If a statute or an instrument provides for transfer of a present or future interest to, or creates a present or future interest in, a designated person’s…
- § 21115 (a) Except as provided in subdivision (b), halfbloods, adopted persons, persons born out of wedlock, stepchildren, foster children, and the issue of these…
- § 21117 At-death transfers are classified as follows: (a) A specific gift is a transfer of specifically identifiable property. (b) A general gift is a transfer from…
- § 21118 (a) If an instrument authorizes a fiduciary to satisfy a pecuniary gift wholly or partly by distribution of property other than money, property selected for…
CHAPTER 2. Ascertaining Meaning of Language Used in the Instrument §§ 21120–21122 · 3 sections
- § 21120 The words of an instrument are to receive an interpretation that will give every expression some effect, rather than one that will render any of the…
- § 21121 All parts of an instrument are to be construed in relation to each other and so as, if possible, to form a consistent whole. If the meaning of any part of an…
- § 21122 The words of an instrument are to be given their ordinary and grammatical meaning unless the intention to use them in another sense is clear and their intended…
CHAPTER 3. Exoneration; Ademption §§ 21131–21139 · 6 sections
- § 21131 A specific gift passes the property transferred subject to any mortgage, deed of trust, or other lien existing at the date of death, without right of…
- § 21132 (a) If a transferor executes an instrument that makes an at-death transfer of securities and the transferor then owned securities that meet the description in…
- § 21133 A recipient of an at-death transfer of a specific gift has a right to the property specifically given, to the extent the property is owned by the transferor at…
- § 21134 (a) Except as otherwise provided in this section, if, after the execution of the instrument of gift, specifically given property is sold, or encumbered by a…
- § 21135 (a) Property given by a transferor during his or her lifetime to a person is treated as a satisfaction of an at-death transfer to that person in whole or in…
- § 21139 The rules stated in Sections 21133 to 21135, inclusive, are not exhaustive, and nothing in those sections is intended to increase the incidence of ademption…
CHAPTER 4. Effective Dates § 21140 · 1 section
- § 21140 This part applies to all instruments, regardless of when they were executed.
PART 2. PERPETUITIES §§ 21200–21231 · 15 sections
CHAPTER 1. Uniform Statutory Rule Against Perpetuities §§ 21200–21225 · 13 sections
ARTICLE 1. General Provisions §§ 21200–21202 · 3 sections
- § 21200 This chapter shall be known and may be cited as the Uniform Statutory Rule Against Perpetuities.
- § 21201 This chapter supersedes the common law rule against perpetuities.
- § 21202 (a) Except as provided in subdivision (b), this part applies to nonvested property interests and unexercised powers of appointment regardless of whether they…
ARTICLE 2. Statutory Rule Against Perpetuities §§ 21205–21209 · 5 sections
- § 21205 A nonvested property interest is invalid unless one of the following conditions is satisfied: (a) When the interest is created, it is certain to vest or…
- § 21206 A general power of appointment not presently exercisable because of a condition precedent is invalid unless one of the following conditions is satisfied: (a)…
- § 21207 A nongeneral power of appointment or a general testamentary power of appointment is invalid unless one of the following conditions is satisfied: (a) When the…
- § 21208 In determining whether a nonvested property interest or a power of appointment is valid under this article, the possibility that a child will be born to an…
- § 21209 (a) If, in measuring a period from the creation of a trust or other property arrangement, language in a governing instrument (1) seeks to disallow the vesting…
ARTICLE 3. Time of Creation of Interest §§ 21210–21212 · 3 sections
- § 21210 Except as provided in Sections 21211 and 21212, the time of creation of a nonvested property interest or a power of appointment is determined by other…
- § 21211 For purposes of this chapter: (a) If there is a person who alone can exercise a power created by a governing instrument to become the unqualified beneficial…
- § 21212 For purposes of this chapter, a nonvested property interest or a power of appointment arising from a transfer of property to a previously funded trust or other…
ARTICLE 4. Reformation § 21220 · 1 section
- § 21220 On petition of an interested person, a court shall reform a disposition in the manner that most closely approximates the transferor’s manifested plan of…
ARTICLE 5. Exclusions from Statutory Rule Against Perpetuities § 21225 · 1 section
- § 21225 Article 2 (commencing with Section 21205) does not apply to any of the following: (a) A nonvested property interest or a power of appointment arising out of a…
CHAPTER 2. Related Provisions §§ 21230–21231 · 2 sections
- § 21230 The lives of individuals selected to govern the time of vesting pursuant to Article 2 (commencing with Section 21205) of Chapter 1 may not be so numerous or so…
- § 21231 In determining the validity of a nonvested property interest pursuant to Article 2 (commencing with Section 21205) of Chapter 1, an individual described as the…
PART 3. NO CONTEST CLAUSE §§ 21310–21315 · 6 sections
- § 21310 As used in this part: (a) “Contest” means a pleading filed with the court by a beneficiary that would result in a penalty under a no contest clause, if the no…
- § 21311 (a) A no contest clause shall only be enforced against the following types of contests: (1) A direct contest that is brought without probable cause. (2) A…
- § 21312 In determining the intent of the transferor, a no contest clause shall be strictly construed.
- § 21313 This part is not intended as a complete codification of the law governing enforcement of a no contest clause. The common law governs enforcement of a no…
- § 21314 This part applies notwithstanding a contrary provision in the instrument.
- § 21315 (a) This part applies to any instrument, whenever executed, that became irrevocable on or after January 1, 2001. (b) This part does not apply to an instrument…
PART 3.7. Presumption of Fraud or Undue Influence §§ 21360–21392 · 15 sections
CHAPTER 1. Definitions §§ 21360–21374 · 7 sections
- § 21360 The definitions in this chapter govern the construction of this part.
- § 21362 (a) “Care custodian” means a person who provides health or social services to a dependent adult, except that “care custodian” does not include a person who…
- § 21364 “Cohabitant” has the meaning provided in Section 13700 of the Penal Code.
- § 21366 “Dependent adult” means a person who, at the time of executing the instrument at issue under this part, was a person described in either of the following: (a)…
- § 21368 “Domestic partner” has the meaning provided in Section 297 of the Family Code.
- § 21370 “Independent attorney” means an attorney who has no legal, business, financial, professional, or personal relationship with the beneficiary of a donative…
- § 21374 (a) A person who is “related by blood or affinity” to a specified person means any of the following persons: (1) A spouse or domestic partner of the specified…
CHAPTER 2. Operation and Effect of Presumption §§ 21380–21392 · 8 sections
- § 21380 (a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence: (1) The…
- § 21382 Section 21380 does not apply to any of the following instruments or transfers: (a) Except as provided in paragraph (4) of subdivision (a) of Section 21380, a…
- § 21384 (a) A donative transfer is not subject to Section 21380 if the instrument is reviewed by an independent attorney who counsels the transferor, out of the…
- § 21385 (a) An at-death transfer, as defined in Section 21104, between spouses by will, revocable trust, beneficiary form, or other instrument is not subject to…
- § 21386 If a donative transfer fails under this part, the instrument making the donative transfer shall operate as if the beneficiary had predeceased the transferor…
- § 21388 (a) A person is not liable for transferring property pursuant to an instrument that is subject to the presumption created under this part, unless the person is…
- § 21390 This part applies notwithstanding a contrary provision in an instrument.
- § 21392 (a) This part shall apply to instruments that become irrevocable on or after January 1, 2011. For the purposes of this section, an instrument that is otherwise…
PART 4. ABATEMENT §§ 21400–21406 · 7 sections
- § 21400 Notwithstanding any other provision of this part, if the instrument provides for abatement, or if the transferor’s plan or if the purpose of the transfer would…
- § 21401 Except as provided in Sections 21612 (omitted spouse) and 21623 (omitted children) and in Division 10 (commencing with Section 20100) (proration of taxes),…
- § 21402 (a) Shares of beneficiaries abate in the following order: (1) Property not disposed of by the instrument. (2) Residuary gifts. (3) General gifts to persons…
- § 21403 (a) Subject to subdivision (b), shares of beneficiaries abate pro rata within each class specified in Section 21402. (b) Gifts of annuities and demonstrative…
- § 21404 If an instrument requires property that is the subject of a specific gift to be exonerated from a mortgage, deed of trust, or other lien, a specific gift of…
- § 21405 (a) In any case in which there is abatement when a distribution is made during estate administration, the court shall fix the amount each distributee must…
- § 21406 (a) This part does not apply to a gift made before July 1, 1989. In the case of a gift made before July 1, 1989, the law that would have applied had this part…
PART 5. COMPLIANCE WITH INTERNAL REVENUE CODE §§ 21500–21541 · 13 sections
CHAPTER 1. General Provisions §§ 21500–21503 · 4 sections
- § 21500 As used in this part, “Internal Revenue Code” means the Internal Revenue Code of 1986, as amended from time to time. A reference to a provision of the Internal…
- § 21501 (a) This part applies to a distribution made on or after January 1, 1988, whether the transferor died before, on, or after that date. (b) A distribution made…
- § 21502 (a) This part does not apply to an instrument the terms of which expressly or by necessary implication make this part inapplicable. (b) By an appropriate…
- § 21503 (a) If an instrument includes a formula intended to eliminate the federal estate tax, the formula shall be applied to eliminate or to reduce to the maximum…
CHAPTER 2. Marital Deduction Gifts §§ 21520–21526 · 7 sections
- § 21520 As used in this chapter: (a) “Marital deduction” means the federal estate tax deduction allowed for transfers under Section 2056 of the Internal Revenue Code…
- § 21521 Sections 21524 and 21526 do not apply to a trust that qualifies for the marital deduction under Section 20.2056(e)-2(b) of the Code of Federal Regulations…
- § 21522 If an instrument contains a marital deduction gift: (a) The provisions of the instrument, including any power, duty, or discretionary authority given to a…
- § 21523 (a) The Economic Recovery Tax Act of 1981 was enacted August 13, 1981. This section applies to an instrument executed before September 12, 1981 (before 30 days…
- § 21524 If a marital deduction gift is made in trust, in addition to the other provisions of this chapter, each of the following provisions also applies to the marital…
- § 21525 (a) If an instrument that makes a marital deduction gift includes a condition that the transferor’s spouse survive the transferor by a period that exceeds or…
- § 21526 A fiduciary is not liable for a good faith decision to make any election, or not to make any election, referred to in Section 2056(b)(7) or Section 2523(f) of…
CHAPTER 3. Charitable Gifts §§ 21540–21541 · 2 sections
- § 21540 If an instrument indicates the transferor’s intention to comply with the Internal Revenue Code requirements for a charitable remainder unitrust or a charitable…
- § 21541 If an instrument indicates the transferor’s intention to comply with the requirements for a charitable lead trust as described in Section 170(f)(2)(B) and…
PART 6. FAMILY PROTECTION: OMITTED SPOUSES AND CHILDREN §§ 21600–21630 · 10 sections
CHAPTER 1. General Provisions §§ 21600–21601 · 2 sections
- § 21600 This part shall apply to property passing by will through a decedent’s estate or by a trust, as defined in Section 82, that becomes irrevocable only on the…
- § 21601 (a) For purposes of this part, “decedent’s testamentary instruments” means the decedent’s will or revocable trust. (b) “Estate” as used in this part shall…
CHAPTER 2. Omitted Spouses §§ 21610–21612 · 3 sections
- § 21610 Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent…
- § 21611 The spouse shall not receive a share of the estate under Section 21610 if any of the following is established: (a) The decedent’s failure to provide for the…
- § 21612 (a) Except as provided in subdivision (b), in satisfying a share provided by this chapter: (1) The share will first be taken from the decedent’s estate not…
CHAPTER 3. Omitted Children §§ 21620–21623 · 4 sections
- § 21620 Except as provided in Section 21621, if a decedent fails to provide in a testamentary instrument for a child of decedent born or adopted after the execution of…
- § 21621 A child shall not receive a share of the estate under Section 21620 if any of the following is established: (a) The decedent’s failure to provide for the child…
- § 21622 If, at the time of the execution of all of decedent’s testamentary instruments effective at the time of decedent’s death, the decedent failed to provide for a…
- § 21623 (a) Except as provided in subdivision (b), in satisfying a share provided by this chapter: (1) The share will first be taken from the decedent’s estate not…
CHAPTER 4. Applicability § 21630 · 1 section
- § 21630 This part does not apply if the decedent died before January 1, 1998. The law applicable prior to January 1, 1998, applies if the decedent died before January…
PART 7. CONTRACTS REGARDING TESTAMENTARY OR INTESTATE SUCCESSION § 21700 · 1 section
- § 21700 (a) A contract to make a will or devise or other instrument, or not to revoke a will or devise or other instrument, or to die intestate, if made after the…