Black-letter propositions
- 01
A transferee who fails to survive until a future time required by the instrument does not take, and if survival cannot be shown by clear and convincing evidence it is deemed not to have occurred (California Probate Code section 21109).
- 02
Under an anti-lapse statute like California Probate Code section 21110, when a kindred transferee dies before the transferor or fails to survive a required time, the transferee's issue take in that place unless the instrument shows a contrary intention, and a survival requirement is itself a contrary intention.
- 03
If a transfer fails and the instrument gives no alternative disposition, the property falls into the residue, or into the estate if there is no residue; and if a share of a residuary gift or a future interest given to two or more persons fails, it passes to the other transferees in proportion to their interests.
- 04
A fee tail, created by words like 'to John and the heirs of his body,' has been abolished in most states, so those words now create a fee simple; some states also disentail existing fee tails by statute.
- 05
The doctrine of worthier title presumes that a grantor who conveys a future interest to his own heirs meant to keep it, and the rule in Shelley's case treats a future interest given to the heirs of the grantee who holds the possessory estate as the grantee's own; most states have abolished both.
- 06
An executory interest is a future interest in a transferee that divests a prior estate, as a shifting interest, or springs out of the grantor, as a springing interest, and it is subject to the rule against perpetuities.
- 07
Reformation of a disposition that violates the perpetuities rule, as under California Probate Code section 21220, applies the cy pres idea by adjusting the gift to most closely approximate the transferor's plan.
Use this attack sequence under time
Frame the issue
Read the instrument for any survival condition and note the moment at which survival is measured.
Resolve the next checkpoint
If a named beneficiary died first, check the anti-lapse statute, who qualifies as a transferee, and whether the instrument shows a contrary intention.
Resolve the next checkpoint
If a gift fails, follow the order of the statute: alternative disposition, residue, other class or future-interest members, then intestacy.
Finish the conclusion
For archaic language, ask whether the jurisdiction abolished the fee tail, worthier title or Shelley's case.
Common wrong turns
- A requirement that the beneficiary survive the transferor usually blocks the anti-lapse substitute, because it shows a contrary intention.
- An executory interest is not a remainder and is not protected from the rule against perpetuities.
- Old-law doctrines apply only in states that have not abolished them, and the question usually says which rule governs.
Worked example
A will leaves land 'to my brother Ben.' Ben dies before the testator and leaves a daughter. The will has no residuary clause and no contrary language.
Under an anti-lapse statute like California's, Ben's daughter takes in his place, because Ben was kindred of the transferor and the will shows no contrary intention. If the will had said 'to Ben if he survives me,' the survival condition would defeat the substitution, and the gift would fall into the residue or the estate.
Practice this topic
Survival and substituted takers
California Probate Code section 21109 says a transferee who fails to survive the transferor of an at-death transfer, or to survive until a future time required by the instrument, does not take under the instrument. If it cannot be determined by clear and convincing evidence that the transferee survived until the required time, the transferee is deemed not to have survived.
Section 21110 supplies substitute takers. If a transferee who is kindred of the transferor is dead when the instrument is executed or fails to survive the transferor or a required future time, the transferee's issue take in that place. The section counts a class-gift transferee as a transferee unless the transferee died before the instrument was executed and the transferor knew it. It withholds the substitution when the instrument expresses a contrary intention, and it says a requirement that the transferee survive the transferor is such an intention. Section 21111 supplies what happens next. A failed transfer passes under any alternative disposition, then into a residue, then to the estate, and a failed share of a residuary gift or future interest to two or more persons passes to the others in proportion.
Old rules about heirs and tails
Cornell's Wex entries describe several doctrines in which the words of a future interest do not mean what they seem to. A fee tail, created by 'to John Doe and the heirs of his body,' is abolished in most states, and in those states the language creates a fee simple. The doctrine of worthier title creates a presumption that when a grantor conveys a future interest to his own heirs he meant to keep the interest, and Wex says most states have abolished it, citing Virginia Code section 55.1-113. The rule in Shelley's case treated a future interest limited to the heirs of the grantee who holds the possessory estate as the grantee's own.
Wex's entry on executory interests says they are future interests in a transferee that either divest a prior estate or spring out of the grantor, that they are non-vested and subject to the rules against perpetuities, and that many shifting executory interests violate the rule.
Reformation and the cy pres idea
California's statutory rule against perpetuities, Probate Code section 21205, treats a nonvested property interest as invalid unless it is certain, when created, to vest or terminate within 21 years after the death of an individual then alive, or it actually vests or terminates within 90 years after its creation. Section 21220 tells a court, on petition, to reform a disposition that would otherwise be invalid in the way that most closely approximates the transferor's manifested plan of distribution and stays within the 90 years.
That instruction is the cy pres idea applied to private gifts: instead of striking the gift, the court rewrites it as near to the transferor's purpose as the law permits. A separate discussion of the perpetuities rule itself appears in the module that follows this one.
Frequently asked questions
What is the controlling rule for survivorship, class gifts, and common-law rules that affect future interests?+
Identify whether survival is required, apply the anti-lapse or failure-of-transfer rule in order, and note any old-law doctrine the question abolishes or preserves.
What happens if a beneficiary must survive to take and does not?+
The beneficiary does not take under the instrument, and if survival cannot be proved by clear and convincing evidence it is deemed not to have occurred, under California Probate Code section 21109.
Who takes if a named relative dies before the testator?+
Under a statute like section 21110, the relative's issue take in the relative's place unless the instrument shows a contrary intention.
Does a survival requirement defeat the anti-lapse substitute?+
Yes. Section 21110 says a requirement that the transferee survive the transferor is a contrary intention.
What does 'to John and the heirs of his body' create today?+
In most states, a fee simple, because the fee tail has been abolished, according to Cornell's Wex entry.
What is the doctrine of worthier title?+
A presumption that a grantor who conveys a future interest to his own heirs meant to keep it, abolished in most states, per Wex.