Decoding Trust Clauses in California: A Guide to Understanding Common Trust Provisions

Navigating the world of estate planning can be a labyrinth of legal jargon and complex clauses, especially if you’re unfamiliar with legal jargon meaning, common trust provisions, or the specifics of California trust law. The language can seem foreign—almost like reading ancient Greek.

These are clauses that you often see in estate planning documents, specifically revocable trusts. This blog post aims to demystify these common trust provisions by breaking down the key trust clauses that you’ll likely encounter in California. The information provided here draws from 15 years of experience in the field and aims to simplify these complexities.

For detailed legal advice on California trust law and other estate planning matters, consult with experts at

Table of contents: 

  1. The Rule Against Perpetuities: What It Means in California Trust Law
  2. The Power of Appointment Explained
  3. Understanding Disclaimer Trusts in California Trust Law
  4. The Intricacies of Disclaimer Trusts in California Trust Law
  5. The Controversial No Contest Clauses in California Trust Law
  6. The Significance of Spendthrift Provisions in California Trust Law
  7. Summing Up Common Trust Provisions in California

The Rule Against Perpetuities: What It Means in California Trust Law

Reading through a trust document, you may stumble upon a perplexing paragraph referred to as the “Rule Against Perpetuities.” For those unfamiliar with legal jargon, this term could sound archaic or even mysterious. Yet, this clause is a staple in law school exams and a fundamental part of trust law, particularly in California.

The Rule, Explained

In the language of a typical California trust, this rule dictates that any trust must come to an end 21 years after the demise of the last living descendant of both your paternal and maternal grandparents alive at the time of your death. While the wording may seem convoluted, the rule’s purpose is remarkably straightforward.

The Rationale: No Trusts Lasting Forever

California, echoing federal law, has a public policy aimed at preventing trusts from existing indefinitely. The reasoning is that money should be actively contributing to commerce rather than lying stagnant within a trust. This ensures that wealth isn’t hoarded but rather is allowed to circulate, aiding economic activity and social mobility.

Time Constraints: What Does It Mean for You?

Specifically, in California, the rule essentially dictates that the trust can only last for the lifespan of the youngest individual alive at the time the trust is established, plus an additional 21 years. Practically, this often translates to a trust duration of approximately 90 to 100 years.

Dynasty Trusts and Generational Impact

For those considering a dynasty trust, this rule imposes the same time limits. The trust would last for the lifespan of the youngest beneficiary of the dynasty trust, plus those additional 21 years. 

Typically, this rule allows retention in a trust up to about three generations. After the death of the grandchild beneficiary, the assets within the trust must be distributed, ending the trust’s existence.

A Rule for the Ages

In essence, the Rule Against Perpetuities acts as a time-bound mechanism to ensure that money doesn’t remain “locked up” in trusts for eternity. While some states allow for more extended trust periods, California trust law stands firm on this rule to uphold its broader economic objectives.

Understanding this rule provides essential insights into how trusts function in California, offering both creators and beneficiaries a clearer picture of the limitations imposed on preserving wealth across generations.

The Power of Appointment Explained

Next up, we have the power of appointment. A power of appointment is the ability granted to a beneficiary upon their death—referred to as the “testamentary” in legal jargon meaning—to direct how remaining assets in a trust will be distributed. 

Specifically, the beneficiary has limited authority to allocate any remaining principal and undistributed income of the trust to one or more individuals, corporations, or other entities. However, this authority is restricted in that it cannot benefit the beneficiary, their estate, or any creditors of their estate. This limitation is purposefully included to avoid estate tax implications.

How Does It Work?

For instance, if a trust is established by a parent for their child, the child—as the beneficiary—may have the option to direct where the remaining assets in the trust go after their passing. In legal jargon meaning, this is known as “exercising” the power of appointment.

Exercising the Power of Appointment

The beneficiary can exercise this power in various ways. They can either include it within their will or establish it through a standalone document, depending on what the original trust dictates. 

For example, one could exercise this power by stating, “I hereby direct that the remaining property in the [Name of Trust] held for my benefit will go to [Spouse’s Name], provided they outlive me. If not, the assets will be directed to [Alternative Recipient, e.g., a charitable organization].”

What if the Power is Not Exercised?

Should the beneficiary choose not to exercise this power, or fail to do so effectively, the remaining assets in the trust will default to whatever the trust says, which is typically to their descendants, if any. However, if the beneficiary wishes for the assets to be allocated differently—perhaps due to a lack of descendants or other personal reasons—they must make sure to exercise their power of appointment as specified in the trust.

Relevance in Dynasty Trusts

This mechanism is commonly found in Dynasty Trusts, where the aim is often to mitigate estate taxes through multiple generations. By giving a beneficiary the power to appoint the trust assets, the funds can be directed in a way that bypasses additional estate tax obligations.

By understanding and wisely exercising the power of appointment, beneficiaries can have greater control over the financial legacy they leave behind.

Understanding Disclaimer Trusts in California Trust Law

Another common trust provision you might encounter in your California trust documents is a “Disclaimer Trust.” Unlike the perpetual trusts or powers of appointment, the primary function of a disclaimer trust is to provide financial flexibility and optional planning opportunities for the surviving spouse.

The Basics of Disclaimer Trusts

In the most straightforward terms, a disclaimer trust allows the surviving spouse to “disclaim” or refuse a portion of the assets inherited from their deceased spouse. The disclaimed assets then go to a separate trust, often referred to as the “Disclaimer Trust” where they are administered according to specific rules set out in the trust document.

Why Would Someone Use a Disclaimer Trust?

You might wonder why anyone would opt to refuse inheritance. In 15 years of estate planning practice, I have seen the disclaimer trust activated only once, and that was for California property tax purposes. Typically, the tool is there as a safety net for unforeseen circumstances. For instance, if the estate tax exemption were to drop dramatically, the surviving spouse might use the disclaimer trust to avoid excessive taxation.

An Optional Bypass Trust

Think of the disclaimer trust as an “optional bypass trust.” It allows the surviving spouse to maintain financial flexibility while respecting the original wishes of the deceased spouse. It’s like having an emergency brake you hope you never need to use but appreciate having just in case.

To Disclaim or Not to Disclaim: The Ultimate Choice

The utility of a Disclaimer Trust essentially boils down to choice. It offers the surviving spouse the opportunity to make a financial decision that best suits their needs and future planning. While it’s true that most surviving spouses opt not to activate the Disclaimer Trust, its inclusion serves as a valuable option just in case.

The Controversial No Contest Clause in California Trust Law

In California trust documents, another clause you might encounter is the “No Contest Clause.” Contrary to what its name implies, this provision is highly contested in California trust law, both for its ethical implications and its enforceability.

 What is a No Contest Clause?

A No Contest Clause is a provision that discourages beneficiaries from challenging the validity of a trust or any of its amendments. In layman’s terms, this common trust provision serves as a sort of deterrent against disputes. The clause states that if a beneficiary contests the trust, they will forfeit their inheritance and lose all rights to the trust property.

Legality and Enforceability

Despite its presence in many trusts, California law has grown increasingly skeptical of No Contest Clauses. As of around 2010, statues and court decisions have significantly limited their enforceability. These clauses are now seen as “disfavored” within the legal community.

How Effective Are No Contest Clauses?

While the law has stripped these clauses of much of their potency, they continue to exist in modern-day trusts primarily for their psychological impact. Many beneficiaries are unaware of the enforcement difficulty. They choose not to contest the trust. They fear losing their inheritance. Therefore, the real utility of No Contest Clauses in California trust law lies in their capacity to deter uninformed beneficiaries from taking legal action.

Special Cases: Those Excluded from the Trust

If someone is not listed as a beneficiary and the trust includes a No Contest Clause, there’s no real disincentive for them to challenge the trust. Why? Simply because they stand to lose nothing they were entitled to in the first place.

To Include or Not to Include: A Matter of Strategy

Despite their waning legal impact, No Contest Clauses can still serve a function. While they may not be ironclad, their presence may make a beneficiary think twice before challenging a trust, particularly if they are unaware of the intricacies of California trust law. 

For this reason, some experts in the field, like us at Cookman Law, may advise including these clauses as an additional layer of protection against disputes, albeit one that should not be solely relied upon.

The Significance of Spendthrift Provisions in California Trust Law

The last key provision today is the Spendthrift Provision. It’s vital but often misunderstood in trust clauses. Don’t be confused by the legal jargon. A spendthrift provision isn’t just for reckless spenders. Rather, it’s a safeguard aimed at preserving the value of the trust under specific circumstances.

What is a Spendthrift Provision?

In common trust provisions, a Spendthrift Provision restricts a beneficiary’s ability to mishandle their inheritance. The language of this clause states that no beneficiary may assign, anticipate, or willingly transfer the earnings or principal of any trust created under the main trust. Furthermore, the income or principal is not subject to external legal actions, like attachment, bankruptcy proceedings, or lawsuits.

How Does it Function?

The primary goal is asset protection in California trust law. If a beneficiary faces issues like bankruptcy or lawsuits, the provision comes into play. It allows the trustee to hold funds temporarily. This pause ensures that the inheritance is not squandered or seized, effectively providing a safety net.

Practical Applications

In real-world scenarios, the spendthrift provision is especially beneficial. Let’s say a beneficiary is going through a complicated divorce or is burdened with debt. The trustee has the discretion to delay distribution of the assets, preserving the value of the trust. It’s an extra layer of security that prevents the depletion of the trust’s value due to a beneficiary’s financial instability or legal troubles.

The Double-Edged Sword

While spendthrift provisions offer benefits, they come with limitations. In California trust law, such provisions cannot be enforced against a beneficiary’s child support, alimony obligations, or any government claims. Thus, while they serve a crucial protective function, their scope is not absolute.

Summing Up Common Trust Provisions in California

Understanding the landscape of California trust law doesn’t have to be a daunting task filled with incomprehensible legal jargon. With the right guidance, you can decode common trust provisions like the Rule Against Perpetuities, Power of Appointment, Disclaimer Trusts, No Contest Clauses, and Spendthrift Provisions.

Each of these trust clauses serves a unique purpose, designed to protect the integrity of the trust and the interests of the beneficiaries. Whether you are creating a trust or are a beneficiary, understanding these clauses will empower you to make informed decisions.

Get Expert Advice Today

Navigating through California trust law can be a complex journey. For detailed, tailored advice that meets your specific needs, consult the experts at Cookman Law. With 15 years experience, we simplify complexities to guide you to financial security.

Is there a specific topic in California trust law that you would like to know more about? Let us know in the comments below, or contact our team for a one-on-one consultation.