Estate planning is designed to give clarity, control, and peace of mind. But even the most thoughtful plan can run into complications when life takes an unexpected turn, such as when a chosen beneficiary passes away before you do.
It’s a situation more common than many families realize, and if your estate plan doesn’t clearly address it, the outcome may not reflect your true intentions. In some cases, assets go to people in a way you never intended. In others, they may end up in probate or require costly legal intervention to untangle.
Understanding what happens when a beneficiary predeceases you—and how to prevent unintended results—is an essential part of keeping your estate plan current and effective.
What Happens Legally if a Beneficiary Dies Before You?
The answer depends on several factors: the type of estate planning document involved (will vs. trust), the wording in your will or trust, and California’s anti-lapse rules. Here's how each comes into play.
1. If Your Will or Trust Includes “Per Stirpes” or “Per Capita” Language
Many estate plans specify how assets should pass if a beneficiary dies first. Two common approaches are:
Per stirpes: The deceased child’s share goes to their children (your grandchildren).
Per capita: The deceased child’s share is divided among all surviving beneficiaries at the same generational level.
Without understanding the difference, families are often surprised by how assets divide, a reminder of why reviewing these terms with an attorney is critical.
2. If the Document Does Not Address the Issue
If your estate planning documents do not include clear instructions, California law may step in.
Under California’s anti-lapse statute, if a beneficiary is a close relative, such as a child, their share may automatically pass to their descendants.
However, this rule does not apply if:
- The document expressly disallows it,
- The beneficiary is not related by blood, or
- The plan instructs assets to go elsewhere.
This can create outcomes that don’t match your wishes if the language hasn’t been updated in years.
3. Beneficiaries Who Have No Descendants
If a beneficiary dies without children and you have not provided backup beneficiaries (also known as “remote contingent beneficiaries”), that portion of your estate may:
- Be redistributed among surviving beneficiaries,
- Pass to someone under state intestacy rules, or
- Potentially cause assets to end up in probate.
This can derail an otherwise well-structured plan.
Why This Matters: A Real-Life Scenario
Imagine a parent with two adult children, each scheduled to receive 50% of the estate. Years later, one child tragically passes away, leaving two teenage children. If the trust or will has not been updated, one of several unintended outcomes may occur:
- The grandchildren may receive a large lump sum at a young age, with no restrictions or oversight.
- If the anti-lapse statute applies, the grandchildren may inherit even if this wasn’t the parent’s intention.
- If the statute doesn’t apply and the document is silent, the surviving adult child may inherit everything.
These outcomes often surprise families and can contradict what the parent would have truly wanted, such as establishing long-term trusts for grandchildren, or reallocating gifts to other loved ones or charities as an alternate beneficiary.
The Practical Impact on Your Estate Plan
Although planning for a beneficiary to possibly predecease you may be unthinkable, it’s necessary. Life changes quickly, and your estate plan must keep up.
Here are the most important issues to consider:
1. Do You Want the Beneficiary’s Children to Inherit?
If yes, your document should include:
- Per stirpes language, and you should consider…
- Holding those assets in trust for those alternate beneficiaries. These safeguards prevent large, unmanaged inheritances at age 18.
2. Do You Prefer Another Beneficiary to Receive the Share?
Some clients prefer the share to go back into the “pot” and divide among surviving beneficiaries. This must be stated clearly or the law may decide for you.
3. Are Your Backup/Contingent Beneficiaries Current?
Many people choose contingent beneficiaries when the plan is created but never revisit them.
Common issues include:
- Former spouses still listed
- Deceased individuals still named
- Charities that no longer exist
- Adult children who now need more complex planning
4. Do Your Beneficiaries Need Protection?
If a beneficiary’s children stand to inherit, consider:
- Divorce protection
- Creditor protection
- Special needs planning
- Substance abuse or financial maturity concerns
Modern trusts can be drafted to provide creditor protection for the beneficiary to help prevent the inheritance from being taken in a divorce, lawsuit, or bankruptcy.
How to Plan Ahead and Avoid Problems
To ensure your wishes are honored, make sure your estate plan includes the following:
1. Clear contingent beneficiary provisions
Name backups, and backups for your backups.
2. Updated distribution instructions
Review terms like per stirpes, per capita, and outright vs. general needs trust distributions.
3. Regular estate plan reviews
Experts recommend reviewing your plan:
- Every 3–5 years,
- After major life changes (births, deaths, marriages, divorces), or
- When significant health or financial changes occur.
4. Coordinated beneficiary designations
Your trust may say one thing, while your retirement accounts or life insurance policies say another. Coordination is key.
5. Guidance from an experienced estate planning attorney
These rules are nuanced and vary with family structure, beneficiary needs, and state law. A tailored approach is essential.
A beneficiary predeceasing you can dramatically alter your estate plan, sometimes in ways you never intended. But with thoughtful drafting, regular updates, and proper legal guidance, you can ensure your wishes are clearly expressed and carried out, no matter what life brings. If you’re unsure whether your current estate plan addresses this issue, or if your plan hasn’t been reviewed in years, now is the perfect time to revisit it.
If you, a friend, or a loved one needs help establishing or updating an estate plan, we’re here to help. Contact our Intake Department at 760-448-2220 or visit us online at www.geigerlawoffice.com/contact.cfm. We proudly serve families across California from our offices in Carlsbad (San Diego County) and Laguna Niguel (Orange County).
