August 5, 2009

California Anti-Lapse Statute

It is not uncommon for the person entitled to something in a will, the beneficiary, to die before the person who wrote the will, the testator. In such case, the gift lapses or fails. A beneficiary needs to survive the testator in order to take the bequest. Prob C § 21109. 

However, if the beneficiary is related by blood to the testator or the testator's spouse (surviving, predeceased, or former), the descendants of the deceased beneficiary take the gift in his or her place, unless the will provides for an alternate disposition. Prob C §21110. This is known as California’s Anti-Lapse Statute. 

Yet if the deceased beneficiary is not related by blood or does not have living descendants, and no alternate disposition is provided in the will, the gift lapses and becomes a part of the residue of the estate. Prob C §21111(a)(2).

For example, suppose Tom wrote a will leaving his favorite car to his beloved brother Bob and everything else, the residue of his estate, to his friend Richard. Bob then dies before the Tom passes away and thereby the gift to Bob would lapse because Bob did not survive Tom. Yet because of California's Anti-Lapse statute, Bob’s gift of the car would pass to his children if he had any. Prob C §21110. Although if Bob did not have any children the gift of the car would pass to Richard because he is the residual beneficiary and Tom did not specifically provide for a contrary intention or a substitute disposition in case Bob died before him. Prob C §2110.