Anti-Lapse Statutes

Most states have anti-lapse statutes. Black’s Law Dictionary Sixth Edition defines ‘anti-lapse statute’ as legislation enacted in most jurisdictions to provide for the testamentary passing of property to heirs and next of kin of the designated legatee or devisee if he dies before the testator, thus preventing a lapse of the legacy and the passing of such property through intestacy to the heirs and next of kin of the testator.

In other words, the anti-lapse statute prevents the bequest or devise from failing to vest because of the death of the devisee or legatee prior to the death of the testator. The statute expresses a presumed intention of the testator, that may be overcome by expression of a contrary intent in the will. The legacy will go to to the heirs and next of kin and if there are none, then to the residue.

Michigan has an anti-lapse statute which can be found at MCL 700.2709 substitute gift: If a beneficiary fails to survive the decedent and is a grandparent, a grandparent’s descendant, or the decedent’s stepchild, the following apply:

(a) Except as provided in subdivision (d), if the beneficiary designation is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary’s surviving descendants. They take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the decedent.

(b) Except as provided in subdivision (d), if the beneficiary designation is in the form of a class gift, other than a beneficiary designation to “issue”, “descendants”, “heirs of the body”, “heirs”, “next of kin”, “relatives”, or “family” or a class described by language of similar import, a substitute gift is created in the surviving descendants of each deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the decedent passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which he or she would have been entitled had the deceased beneficiaries survived the decedent. Each deceased beneficiary’s surviving descendants who are substituted for the deceased beneficiary take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the decedent. For the purposes of this subdivision, “deceased beneficiary” means a class member who failed to survive the decedent and left 1 or more surviving descendants.

(c) For the purposes of section 2701, words of survivorship, such as in a beneficiary designation to an individual “if he survives me” or in a beneficiary designation to “my surviving children”, are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section.

(d) If a governing instrument creates an alternative beneficiary designation with respect to a beneficiary designation for which a substitute gift is created by subdivision (a) or (b), the substitute gift is superseded by the alternative beneficiary designation only if an expressly designated beneficiary of the alternative beneficiary designation is entitled to take.

Another example: State of Maryland’s anti-lapse statute (which can be found at 4-403) as follows:

Article Estates and Trusts §4–403.

(a) Unless a contrary intent is expressly indicated in the will, a legacy may not lapse or fail because of the death of a legatee after the execution of the will but prior to the death of the testator if the legatee is:

(1) Actually and specifically named as legatee;

(2) Described or in any manner referred to, designated, or identified as legatee in the will; or

(3) A member of a class in whose favor a legacy is made.

(b) A legacy described in subsection (a) shall have the same effect and operation in law to direct the distribution of the property directly from the estate of the person who owned the property to those persons who would have taken the property if the legatee had died, testate or intestate, owning the property.

(c) Creditors of the deceased legatee shall have no interest in the property, whether the claim is based on contract, tort, tax obligations, or any other item.

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