If you leave part of your living trust to a child, a sibling, or another relative, you are probably picturing that person receiving it. But what happens if that person dies before you do, and you never updated your trust? In California, the answer often depends on a rule most people have never heard of: the anti-lapse statute. A published Court of Appeal decision from 2026, In re Tung Trust, shows how much a single boilerplate clause can matter.
Key takeaways
- Under California’s anti-lapse statute (Probate Code section 21110), a gift to a relative who dies before you can pass to that relative’s descendants instead of failing.
- The rule does not apply if your trust or will shows a “contrary intention,” such as an express requirement that the beneficiary survive you.
- In In re Tung Trust (June 9, 2026), the Court of Appeal held that a standard “survive by 30 days” clause was not enough, on its own, to cut out a predeceased son’s children.
- The safest approach is to say clearly, in your own documents, who should receive each gift if a beneficiary dies first.
What “lapse” means in a California trust or will
A gift “lapses” when the person who was supposed to receive it is no longer alive to take it. As a starting point, California law says a beneficiary generally must survive the person making the gift (Probate Code section 21109). If the beneficiary does not, the gift fails.
A failed gift does not simply disappear. Depending on the document, it may fall into the residue (the “everything else” clause), be shared by other beneficiaries, or, if nothing in the document covers it, pass under California’s intestacy rules as though there were no plan for that property at all. For a trust with no residuary clause, that last result can mean the property returns to the estate and may even end up in probate, which is often exactly what a living trust was meant to prevent.
How California’s anti-lapse statute works
Probate Code section 21110 softens the harsh result of a failed gift in one important situation. If the beneficiary was a relative and died before you, that beneficiary’s descendants (“issue”) generally step into the beneficiary’s place. The statute applies to trusts as well as wills.
Who is covered
The anti-lapse rule only protects gifts to “kindred,” meaning blood relatives of the person making the gift, or relatives of that person’s current, deceased, or former spouse. It does not protect gifts to friends, charities, or a spouse. A gift to a close friend who dies before you will still fail unless your document says otherwise.
When the rule does not apply
The statute steps aside if the document expresses a “contrary intention” or names a substitute beneficiary. The statute itself says that a requirement that the beneficiary survive you, or survive you for a set period, counts as a contrary intention. That is where In re Tung Trust comes in.
In re Tung Trust: a 30-day survival clause was not enough
In In re Tung Trust (Cal. Ct. App., 2d Dist., Div. 7, June 9, 2026, certified for publication), a mother’s revocable trust left all of her real property, and half of certain bank accounts, to her son. The trust had no backup beneficiary for those gifts and no residuary clause. The son died about three years before his mother, leaving three children.
The mother’s daughter argued the son’s gift failed, because the trust contained a common boilerplate provision stating that anyone who failed to survive the settlor by 30 days would be treated as having died before her. The probate court agreed and found the gift lapsed.
The Court of Appeal reversed. In its view, the clause did not make the gift conditional on survival. It only explained how to treat someone who outlives the settlor by less than 30 days, a provision that serves other purposes, such as avoiding disputes over the order of death after a common accident and avoiding two back-to-back estate administrations. The court also pointed to other parts of the trust that referred to a beneficiary’s “surviving issue,” and to California’s stated preference for interpretations that avoid intestacy. The result: the anti-lapse statute applied, and the son’s share went to his children.
The court contrasted an earlier case, Burkett v. Capovilla (2003), where the trust expressly made the beneficiary’s entitlement to the gift depend on surviving for a set period. That kind of direct conditional language was treated as a contrary intention. The difference between the two outcomes came down to wording.
What this means for California families
The lesson is not that one outcome is better than the other. Some people want a predeceased child’s share to pass to grandchildren. Others want it to go back to their surviving children, or to a spouse. The problem in cases like this is that the document did not say, and the family ended up in years of court proceedings to find out.
A few practical points:
- Name contingent beneficiaries for each specific gift. If you leave your house to one child, say who receives it if that child dies first.
- Include a residuary clause. A clear “everything else” provision gives a failed gift somewhere to go besides intestacy.
- Do not rely on boilerplate to express your wishes. Standard survivorship language may not do what you assume it does. Your intent should be stated where the gift is made.
- Review your plan after a death in the family. When a beneficiary passes away, updating your trust is usually far simpler than leaving the question to a court later.
- Check your beneficiary designations, too. Life insurance, retirement accounts, and payable-on-death accounts pass under their own forms, and those forms should match your overall plan.
If you are setting up a plan for the first time, our California living trust page explains how a trust works, and our guide to avoiding probate in California covers why gaps in a trust can still lead to court involvement.
Frequently asked questions
If my daughter dies before me, will her children automatically inherit her share of my trust?
Often, yes, if your trust does not say otherwise, because a daughter is “kindred” and the anti-lapse statute will usually substitute her descendants. But if your trust expressly requires her to survive you, or names a different backup beneficiary, those terms generally control.
Does the anti-lapse rule apply to gifts to friends or my spouse?
No. The statute covers relatives of the person making the gift and relatives of that person’s spouse or former spouse. It does not cover the spouse personally, friends, or organizations. Those gifts typically fail if the beneficiary dies first, unless the document provides a substitute.
My trust has a “survive by 30 days” clause. Does that mean the anti-lapse rule won’t apply?
Not necessarily. Under In re Tung Trust, a clause that only defines who is treated as having predeceased you may not be enough to override the statute. The result depends on the exact wording of your whole trust, which is why it is worth having the document reviewed.
How do I make sure my wishes are followed?
State them directly. For each significant gift, say who should receive it if the named beneficiary does not survive you, and include a residuary clause. Reviewing your plan every few years, and after major life events, helps keep it current.
Talk with a California estate planning attorney
If you have questions about how your trust handles a beneficiary who dies first, or you would like a fresh review of an older plan, schedule a free 15-minute call or call 1 (800) 285-1140. Consultations are available in English, Romanian, and Russian. You can also review our legal fees.
Author: Andrei Jingan
This article is general information, not legal advice. Reading it does not create an attorney-client relationship. Attorney advertising.