Probate Code - PROB

DIVISION 11. CONSTRUCTION OF WILLS, TRUSTS, AND OTHER INSTRUMENTS [21101 - 21700]

  ( Division 11 enacted by Stats. 1990, Ch. 79. )

PART 4. ABATEMENT [21400 - 21406]
  ( Part 4 enacted by Stats. 1990, Ch. 79. )

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 be defeated by abatement as provided in this part, the shares of beneficiaries abate as is necessary to effectuate the instrument, plan, or purpose.

(Enacted by Stats. 1990, Ch. 79.)

21401.
  

Except as provided in Sections 21612 (omitted spouse) and 21623 (omitted children) and in Division 10 (commencing with Section 20100) (proration of taxes), shares of beneficiaries abate as provided in this part for all purposes, including payment of the debts, expenses, and charges specified in Section 11420, satisfaction of gifts, and payment of expenses on specifically devised property pursuant to Section 12002, and without any priority as between real and personal property.

(Amended by Stats. 2003, Ch. 32, Sec. 15. Effective January 1, 2004.)

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 other than the transferor’s relatives.

(4) General gifts to the transferor’s relatives.

(5) Specific gifts to persons other than the transferor’s relatives.

(6) Specific gifts to the transferor’s relatives.

(b) For purposes of this section, a “relative” of the transferor is a person to whom property would pass from the transferor under Section 6401 or 6402 (intestate succession) if the transferor died intestate and there were no other person having priority.

(Enacted by Stats. 1990, Ch. 79.)

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 gifts are treated as specific gifts to the extent they are satisfied out of the fund or property specified in the gift and as general gifts to the extent they are satisfied out of property other than the fund or property specified in the gift.

(Enacted by Stats. 1990, Ch. 79.)

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 other property does not abate for the purpose of exonerating the encumbered property.

(Enacted by Stats. 1990, Ch. 79.)

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 contribute for abatement. The personal representative shall reduce the distributee’s share by that amount.

(b) If a specific gift must be abated, the beneficiary of the specific gift may satisfy the contribution for abatement out of the beneficiary’s property other than the property that is the subject of the specific gift.

(Enacted by Stats. 1990, Ch. 79.)

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 not been enacted shall apply.

(b) For purposes of this section a gift by will is made on the date of the decedent’s death.

(Enacted by Stats. 1990, Ch. 79.)

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