Will Anti-Lapse and Substitute Gifts in California

At a glance

Requirements one by one

Instruments and covered people

California's construction rules apply, unless context or another provision requires otherwise, to a will, trust, deed, and any other instrument (Cal. Prob. Code § 21101). For the substitute-gift rule, the deceased transferee must be kin of the transferor or kin of the transferor's surviving, deceased, or former spouse; the transferor's spouse is excluded (§ 21110(c)). The instrument's expressed intention controls the disposition (§ 21102(a)–(b)).

When issue take instead

If the transferee was dead at execution or fails or is treated as failing to survive the transferor or a future time required by the instrument, the transferee's issue take in that person's place (§ 21110(a)). Section 240 divides the gift into equal shares at the nearest generation with living issue, then passes a deceased person's share down the living branch in the same manner. The statute supplies no fixed hour count in § 21110.

Class and residuary gifts

Section 21110(a) treats a class member as a transferee unless that person's death before instrument execution was known to the transferor when it was executed. Subject to substitution, § 21111(a) directs a failed gift to an express alternative, then to the instrument's residue, then to the decedent's estate. If a share of a gift to multiple residuary transferees fails without an alternative, subsection (b) sends that share proportionally to the other transferees.

Contrary intent and alternative gifts

Under § 21110(b), express contrary intent or a substitute disposition prevents issue from taking by substitution. A condition that the initial transferee survive the transferor, survive a specified period after death, or survive until a future time related to probate or administration is expressly contrary intent. Section 21111(a)(1) gives a stated alternative disposition priority when the transfer fails.

What trips people up

The class-member exception depends on the transferor's knowledge at execution, not merely on the date of death (§ 21110(a)). A survival condition may defeat substitution even though failure to survive is one of the rule's initial triggers; § 21110(b) resolves that apparent tension. The broader instrument rules include trusts and deeds, while § 21104 excludes joint tenancy and a joint account with survivorship from its definition of an at-death transfer.

Common questions

Does a gift automatically go to any deceased beneficiary's children? No. Section 21110(c) imposes its kinship test, and subsection (b) honors contrary intent or a substitute disposition.

Does a class member who died before the document was signed count? Section 21110(a) excludes that person only if the transferor knew of the death at execution.

Where does a failed gift go without a substitute? Section 21111(a) follows an alternative disposition, then residue, then the decedent's estate, subject to its stated exceptions.

Statutes and sources

• Cal. Prob. Code §§ 240, 21101–21102, 21104, 21110–21111. The source fields above provide verbatim excerpts, official section links and access dates.