A Boilerplate Survival Clause Does Not Disinherit Grandchildren: In re Tung Trust

What happens when a child named in a parent's trust dies before the parent? Most California trusts contain a boilerplate clause that seems to answer the question: anyone who fails to survive the settlor by 30 days is "deemed to have predeceased" the settlor. For years, trustees have read that clause to mean the deceased child's share simply evaporates, cutting out the grandchildren. In June 2026, in a published decision called In re Tung Trust, the California Court of Appeal said no. Unless the trust clearly says the gift itself is conditioned on survival, the deceased beneficiary's children step into their parent's place. If you are a trustee holding one of these clauses, or a grandchild who was told you get nothing, this case matters enormously.

The safety net: California's antilapse statute

Start with the default rule. When a gift in a will or trust is made to a blood relative who dies before the person making the gift, California law does not let the gift simply fail. Probate Code section 21110, the antilapse statute, substitutes the deceased beneficiary's own descendants: the gift to a child who died passes to that child's children. The Legislature's assumption is that a parent who left a share to a son would rather see that share go to the son's kids than vanish.

The statute yields only if the instrument itself pushes back. Section 21110 does not apply if the trust or will expresses a contrary intention or names a substitute beneficiary, and the statute says a requirement that the beneficiary survive the transferor constitutes that kind of contrary intention. So everything turns on the words of the document: did the settlor actually condition the gift on the beneficiary outliving her?

What happened in Tung

Ya-Ching Tung created a revocable living trust in 2011, naming her three children as the successor beneficiaries. The trust estate included her Santa Monica home. Her oldest child, son Lin-Chuan, died in 2016, leaving three children of his own. Tung herself died in 2019.

The trust contained a survivor provision typical of thousands of California trusts: if any person named in the trust "fails to survive a settlor for thirty days," that person "for all purposes of this trust" is considered to have predeceased the settlor.

The successor trustee petitioned the Los Angeles probate court to declare that the gift to Lin-Chuan failed, meaning his one third share would flow to the surviving branches rather than to his children. The probate court agreed and granted summary adjudication: the survivor clause was a survival requirement, the trustee argued, and a survival requirement defeats the antilapse statute.

The Court of Appeal reverses

Division Seven of the Second District, in an opinion by Justice Feuer certified for publication, reversed. The court read the clause for what it actually says, and just as importantly, for what it does not say.

The survivor provision deems a person who dies within 30 days of the settlor to have predeceased her. On its face, the court explained, that language is not a requirement that the beneficiary survive the settlor in order to receive the gift. It does not state, explicitly or implicitly, that the transfer is conditioned on survival. It merely establishes circumstances in which a beneficiary who survives the settlor will nonetheless be treated as having predeceased her, a housekeeping rule that prevents assets from making a quick second trip through the estate of a beneficiary who dies days after the settlor.

And here is the pivot: treating a beneficiary as predeceased is exactly the situation the antilapse statute is built for. Section 21110 operates when a beneficiary dies before the settlor or is "treated as" failing to survive. A clause that deems someone predeceased does not escape the statute; it walks directly into it.

The court contrasted the clause in an earlier case, Burkett v. Capovilla, where the document said the beneficiary "must survive for sixty (60) days before entitlement to such gift." That language expressly ties entitlement to survival, and it defeats the antilapse statute. Tung's clause contained no such condition. In the absence of clear language showing Tung intended to disinherit her son's children, the antilapse statute applied, and Lin-Chuan's share passes to his three kids. The court also invoked two longstanding principles: the settlor's intent, drawn from the whole instrument, controls, and courts prefer readings that prevent a transfer from failing over readings that produce one.

Why this decision matters

The clause at the center of Tung is not exotic. It is standard boilerplate, generated by form software and copied across countless California trusts. For decades, trustees and their counsel have treated it as a quiet disinheritance of any predeceased child's branch. Tung, now published and citable, says that reading is wrong.

The consequences run in every direction:

1. Grandchildren who were cut out. If your parent was named in a grandparent's trust, died first, and the trustee told you the share lapsed, that conclusion deserves a second look. If the trust used deeming language rather than true conditional language, the share may belong to you.
2. Trustees. Distributing on the old assumption is now dangerous. A trustee who cuts out a predeceased beneficiary's issue based on a deeming clause risks personal liability for misdistribution. Get the clause analyzed before distributing, not after.
3. Anyone with a living trust. The decision is a reminder that what your trust says and what you meant can diverge. If you actually want a predeceased child's share to go to your surviving children rather than that child's kids, your trust must say so in unmistakable terms: condition each gift on survival, or name substitute beneficiaries. If you want the grandchildren protected, say that too. Silence hands the question to a statute and, eventually, a courtroom.

The takeaway

In re Tung Trust rewards precision and punishes assumption. The difference between "shall be deemed to have predeceased me" and "must survive me to receive this gift" is the difference between grandchildren inheriting and grandchildren getting nothing, and only the second formulation reliably defeats the antilapse statute.

The Darvish Firm's Los Angeles trust litigation attorneys represent beneficiaries, omitted heirs, and trustees in disputes over trust interpretation, lapsed gifts, and distribution challenges across Southern California. If a predeceased beneficiary's share is in question in your family's trust, call (310) 677-3512 or request a consultation before anything is distributed.

This article is general information about California law, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its facts. Consult an attorney about your specific situation.