Conditional Devise Clause
(Occurrence of Specified Event) (CA)

Summary

This template is a conditional devise clause that may be used in a California will to make a devise only if a specified event does (or does not) occur. If the stated condition is met, the devise is made. If the condition is not satisfied, the devise may be redirected to an alternate beneficiary or lapse and become part of the residue of the testator's estate. This template includes practical guidance and drafting notes. A testator is free to dispose of his or her estate on whatever conditions he or she may establish so long as the conditions are not prohibited by law and do not violate public policy. Survivorship clauses are routinely employed conditions precedent, requiring the devisee to outlive the testator for a stated period of time. The duration should not be too long, though, as the beneficiary may not use and enjoy the devise until the condition has been satisfied. Furthermore, undue postponement could delay or defeat spousal property confirmation proceedings or endanger the federal estate tax marital deduction. See Cal. Prob. Code §§ 13650–13660 (spousal property confirmation proceedings); I.R.C. § 2056 (marital deduction). Conditional devises can be problematic and should be used judiciously. Given the paucity of cases dealing with alleged illegality or violations of public policy in the context of trusts and wills, one must look to the Civil Code for useful analogies. See Cal. Civ. Code §§ 1667–1670.5. For example, it is not uncommon for a testator to request a condition imposing a restraint upon marriage. To avert a contravention of Cal. Civ. Code § 710, the drafter should take care to choose language which allows use until marriage, showing the testator's intent to provide financial support when the testator believes such support is necessary, as opposed to punishing the testator's spouse or partner for finding happiness with a new significant other. Although the old California Probate Code §§ 142 and 143 distinction between conditions precedent and conditions subsequent were repealed effective January 1, 1985, the testator's request for a condition subsequent merits consideration whether a trust may be a superior vehicle to achieve the testator's goals. Trusts are more flexible than conditional devises, allowing the estate to be closed in a timely manner, with distribution from the trust to the beneficiary when the condition has been fulfilled. Trusts also obviate the need to "undo" a devise if the condition fails. Custodial accounts also warrant a look if the testator intends to devise property to a minor, postponing the minor's full use and enjoyment of the devise until he or she reaches the age of majority (or as late as age 25). For a full listing of key clauses for use when drafting last wills and testaments, see Will Clauses Resource Kit. For additional information about devises and custodial provisions, see Purposes and Uses of a Will (CA). For advice concerning the use of trusts, see Characteristics and Uses of Trusts (CA). Survivorship clauses and custodial nomination clauses can be found in the complete wills in this product. See, e.g., Will for Married Individual (Property Outright to Spouse and Children) (Disclaimer Trust) (CA).