California’s Anti-Lapse Statute: Probate Code Section 21110 Explained
When a loved one passes away, the distribution of their estate depends heavily on the exact wording of their will or trust. But what happens if the person named to inherit dies first? Does their inheritance simply vanish, leaving surviving beneficiaries or residuary heirs to claim more? Or does the law step in to redirect that inheritance to the deceased beneficiary’s children or grandchildren?
In California, the answer lies in Probate Code section 21110, better known as the anti-lapse statute. This statute can dramatically alter who inherits, and it often becomes the center of estate disputes. At Trust Law Partners, we have seen countless cases where anti-lapse either preserved a family’s rightful share or sparked intense litigation over competing interpretations of the law.
This article explains Probate Code section 21110: what it says, when it applies, when it doesn’t, and how it plays out in real litigation. For beneficiaries, heirs, and litigators, understanding anti-lapse is critical.
What Is the Anti-Lapse Statute?
The term “lapse” refers to a gift in a will or trust that fails because the intended beneficiary dies before the person who created the document. Without a rule like section 21110, that gift would simply disappear, often falling into the estate’s residuary clause or even defaulting to intestacy.
California’s anti-lapse statute prevents that outcome in many family situations. It states that if a beneficiary who is related to the testator or trustor dies first but leaves descendants, the gift passes to those descendants instead of disappearing. In other words, the children or grandchildren of the deceased beneficiary “step into their shoes.”
The statute reflects a common-sense presumption: most people who leave an inheritance to a family member would rather it go to that person’s children than have it erased entirely.
Why Anti-Lapse Matters
The anti-lapse statute matters because it shifts inheritances in significant ways. Consider this example:
A mother’s will leaves her estate equally to her two sons. One son dies before her, leaving two children of his own. If the will is silent about what happens in this scenario, section 21110 intervenes. Instead of the surviving son inheriting the entire estate, the deceased son’s children inherit his half.
That outcome can mean millions of dollars. It can also fuel conflict, particularly if the surviving sibling believes they should inherit everything. When these disputes reach court, lawyers argue over whether the statute applies, whether the will shows “contrary intent,” and whether the descendants qualify as rightful takers.
The Language of Section 21110
Section 21110 applies broadly to wills and trusts unless a document shows a contrary intention. The statute only protects gifts to “kindred,” meaning relatives by blood or adoption. If the beneficiary is a friend, spouse, or charity, the gift generally lapses unless the will or trust provides an alternate plan.
The statute also requires that the deceased beneficiary have living descendants. If they had no children or grandchildren, there is nothing for anti-lapse to pass down, and the gift usually falls into the residuary portion of the estate.
This is why anti-lapse cases turn so heavily on the exact words used in the estate plan. Courts look for evidence of whether the testator intended to require survival or wanted the gift to continue through family lines.
When Anti-Lapse Does Not Apply
Although section 21110 is powerful, it does not save every gift. Courts consistently recognize exceptions.
If the estate plan contains survivorship language, such as “to my sister, if she survives me,” then anti-lapse cannot override that explicit condition. The law respects the decedent’s words, even if the outcome seems harsh. Similarly, gifts to non-relatives—friends, step-relatives, or charitable organizations—do not qualify unless the document provides substitutes.
Another limitation arises when the deceased beneficiary leaves no descendants. In that case, the statute has no effect, and the gift reverts to other provisions in the estate plan.
These exceptions often become the battleground in litigation. Surviving relatives may argue that survivorship language is ambiguous or that a decedent intended their descendants to inherit, while others insist the wording eliminates anti-lapse entirely.
Anti-Lapse in Trusts as Well as Wills
Many Californians use revocable living trusts instead of wills as their primary estate planning tool. Some clients assume anti-lapse rules don’t apply to trusts, but courts treat them the same. Unless a trust explicitly excludes anti-lapse or requires survival, the statute can transfer a lapsed gift to the issue of a deceased beneficiary.
This means that even families who thought they avoided probate by using a trust may find themselves embroiled in litigation over anti-lapse disputes.
Case Study: The Power of Silence
Consider a trust that left property “to my three nieces in equal shares.” By the time the trustor passed away, one niece had died, leaving children. The trust did not say what should happen in that situation.
Under section 21110, the deceased niece’s children may inherit her share. If the trustor had wanted only living nieces to inherit, the trust should have said “to my nieces who survive me.” The absence of that language invited anti-lapse to step in and change the distribution.
In litigation, one side will argue that the trustor’s silence means the statute applies. The other may argue that the intent was clearly to give gifts only to living nieces. Courts ultimately decide, but the default rule favors substitution unless contrary intent is clear.
Litigation Over Intent
The biggest disputes arise when the will or trust is ambiguous. Did the decedent mean for the gift to lapse or to carry through to descendants? Courts often look beyond the document itself, considering drafts, attorney notes, and testimony from witnesses.
This can create opportunities for strategic litigation. For example, if a disinherited sibling claims the statute should not apply, they may emphasize language suggesting survivorship. Meanwhile, the children of the deceased beneficiary argue the opposite—that the parent’s intent was to keep the gift in the bloodline.
At Trust Law Partners, we dig into every detail: the exact wording, the family structure, and any supporting evidence that clarifies intent. These battles are often won not just on the law but on the facts surrounding the decedent’s choices.
Planning Ahead: Avoiding Anti-Lapse Disputes
From a planning perspective, the best way to avoid anti-lapse disputes is clarity. Estate documents should be explicit about whether gifts are conditional on survival or whether they should pass to descendants. Drafting alternatives—such as naming contingent beneficiaries—can reduce ambiguity.
Unfortunately, many documents are silent or outdated. People rarely revisit their wills and trusts when family circumstances change, and unexpected deaths make their intent unclear. That silence creates fertile ground for litigation.
While the temptation is to distill anti-lapse into rigid rules, the reality is that outcomes depend heavily on drafting and litigation strategy. Still, some consistent lessons emerge. Clarity controls, because courts prioritize express survivorship or contrary intent language. Only relatives qualify, since friends and charities do not benefit from the statute. Trusts and wills are treated equally. And litigation is almost always fact-driven, with courts weighing both the wording and the surrounding evide...
Conclusion: Anti-Lapse as Both Protection and Risk
Probate Code section 21110 is designed to protect families from losing inheritances because of bad timing. But it is also a statute that creates complexity and invites litigation. When millions of dollars are at stake, siblings and cousins may clash over whether a gift lapsed or survived through descendants.
At Trust Law Partners, we represent beneficiaries in exactly these kinds of disputes. We understand the statute, the case law interpreting it, and the strategies that win in court. Whether you’re a descendant fighting to claim your parent’s share, or another heir disputing an attempted anti-lapse claim, we know how to position your case.
The bottom line is simple: the anti-lapse statute can change everything. Understanding it—and having a legal team prepared to fight over it—can mean the difference between recovering your rightful inheritance or losing it entirely.
Contact Trust Law Partners at 833-878-7852.
