Who inherits if your child dies before you do
Most people who set up an estate plan picture it unfolding in order, with their children dividing what is left and the grandchildren taking a turn further down the line. Sometimes the order breaks. A child dies before the parent does, and then the question is what happens to that child's share. Does it pass down to that child's own children, or does it get split among the brothers and sisters who are still living? California has a default answer, and your trust or will is allowed to override it. Which one governs your family comes down to a single paragraph often near the back of the document and usually about three lines long.
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What California does when the document doesn’t specify
California has a backup rule for this, and it is friendlier than most people expect. If someone you listed to receive a gift dies before you do, that person's children take the share in their place. They split it evenly among themselves, and if one of those children has also died and left kids of their own, that branch divides again at the next level down. Lawyers call this the antilapse rule, because, without it, the gift would lapse. It covers wills and trusts both. It runs in the background whether or not anyone thought about it the day the papers were signed.
When a beneficiary dies before the person who made the will or trust, California law lets that beneficiary's children take the share, unless the document says otherwise.
There is a limit on the rule that catches people off guard. It doesn’t actually cover everyone you might name in a trust. The rule only reaches someone who was related to you by blood, or related to a spouse of yours, including a former or late spouse. A gift to a close friend or a longtime neighbor does not travel on to that person's children. It fails instead, and where it goes next depends on the rest of your document. So if you have left something to someone outside the family, and you would want their kids to have it, your document has to say so on its own.
The clause that turns the rule off
Because state law only provides a default framework, your estate planning documents can override it, and many do, often without the signers realizing it. California law is specific about how this must occur. The children of a dead beneficiary do not step in if the document shows a contrary intention or if it names someone else to take the share instead.
Here is a weird wrinkle: a requirement that the person survive you, or survive you by some set number of days, can count as a contrary intention automatically if there is no language saying where the assets go in the event of that person’s death. For example, say a trust makes a child's gift dependent on that child outliving the parent by ninety days and includes no language that, at death, that share should go to that child’s children. That survivorship clause will have shut the grandchildren out of the share.
A will or trust clause requiring a beneficiary to survive you, or to survive you by a set number of days, may stop that beneficiary's children from inheriting the share in their place.
So is every survivorship clause a mistake? No, and plenty of them are there on purpose. A well-drafted trust will account for this wrinkle, but this is a place where poorly drafted, low-cost documents can cause unintended consequences. A gift that fails goes to whatever alternative the document names. If there is no alternative, it drops into the residue. If there is no residuary clause either, it goes to the estate, and California's intestacy rules take it from there. That last route is how a family ends up in probate court over a house the trust was supposed to keep out of probate, and those cases can run for years.
A 2026 California decision on a 30-day clause
A California appeals court worked through one of these paragraphs in June. Ya-Ching Tung signed a revocable trust in 2011 and left the real property to her son, Lin-Chuan. He died in July 2016, leaving three children of his own, and she died in May 2019. Her trust had a clause in the back titled Survivor by 30 Days. It said that if any person named in the trust failed to survive a settlor for thirty days, that person would be treated as having predeceased the settlor for all purposes of the trust. The successor trustee read that as a survival requirement. On that reading, the gift to Lin-Chuan lapsed, and since the trust named no alternative and had no residuary clause, the property would have dropped into intestacy and his three children would have taken none of it. The probate court agreed with the trustee and ruled for her without a trial.
In re Tung Trust, a published California Court of Appeal decision filed June 9, 2026, holds that a trust clause defining when a beneficiary is treated as having predeceased the settlor is not by itself a requirement that the beneficiary survive.
The Court of Appeal reversed. It held that the paragraph never required anyone to survive in order to inherit. It only said when a person counts as having died first. The court called the language boilerplate, and said nobody could reasonably read a clause like that as quietly disinheriting a son's children, especially when other parts of the same trust talked about a beneficiary's living issue. The order went back down to be vacated, so the case is still open and the family has been in court about it for years. The decision does not make these clauses harmless, though. The court read one particular wording, and a clause drafted as a real condition would have come out the other way.
The steps you can take
• Find your trust or will and read the paragraph about survivorship, usually near the back under a heading like Survivorship, Survival, or Deceased Beneficiaries.
• Work out whether it makes a gift depend on someone outliving you, or only says when a person is treated as having died first. If you cannot tell, that is a fair question to bring to a lawyer.
• Write down, in your own words, what you want to happen to each person's share if that person dies before you. Name the grandchildren if that is your answer.
• Check whether your document names an alternative beneficiary or has a residuary clause, since that is where a failed gift goes next.
• Look separately at anything you have left to someone outside the family, because the backup rule does not reach them.
• Pull the beneficiary forms on your life insurance and retirement accounts. Those pass outside the trust and have their own rules about who is next in line.
If your trust has been in a drawer since the year you signed it, you have plenty of company, and this is a small enough question to settle in an afternoon. When you're ready to get it on paper, our team at Laurel Trust Law can help.