Legal Memorandum: Ademption of a Specific Legacy in CA

Issue: Under California law, what are the primary rules governing the determination of when a specific bequest has adeemed?

Area of Law: Estate Planning & Probate
Keywords: Ademption of a specific legacy; Primary rules
Jurisdiction: California
Cited Cases: 248 Cal. App. 2d 712; 107 Cal. App. 2d 592; 97 Cal. App. 485; 62 Cal. 2d 213
Cited Statutes: Cal. Prob. Code § 21102
Date: 06/01/2011

The California Supreme Court has described the ademption of a testamentary gift as follows:

"’Ademption of a specific legacy is the extinction or withdrawal of a legacy in consequence of some act of the testator equivalent to its revocation, or clearly indicative of an intention to revoke. The ademption is effected by the extinction of the thing or fund bequeathed, or by a disposition of it subsequent to the will which prevents its passing by the will, from which an intention that the legacy should fail is presumed.’"


Estate of Mason, 62 Cal. 2d 213, 215 (1965) (citations omitted).  See also Estate of Newsome, 248 Cal. App. 2d 712, 714 (1967) (“It is settled in California that whether an ademption occurs depends upon the intention of the testator that the devise or bequest should fail.”).  Absent proof that the testator or settler intended that the gift fail, a mere change in the form of property subject to a specific testamentary gift will not result in an ademption.  Estate of Mason, 62 Cal. 2d at 215.  On the other hand, “a specific testamentary gift is adeemed regardless of the testator’s intention when the specific property has been disposed of by the testator and cannot be traced to other property in the estate, or when the testator has placed the proceeds of such property in a fund bequeathed to another.”  Id. at 216. […]