Lapsed Gifts

Question 1

LAPSED GIFTS AND ANTI-LAPSE STATUTES

Answer 1

A gift lapses if the beneficiary predeceases the testator or if the beneficiary is treated as not surviving the testator because, for example, the beneficiary disclaimed or did not survive long enough.

Question 2

Anti-Lapse Statutes

Answer 2

Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator (for example, descendant of the testator, the testator’s
parent, or the testator’s grandparent) and left descendants who survived the testator. These descendants take by substitution. The statute applies unless a contrary provision appears in the will.

Question 3

Lapse in Residuary Gift

Answer 3

If a will devises the residuary estate to two or more beneficiaries and one of them predeceases the testator (and the anti-lapse statute does not apply), some states follow the common law rule and do not
allow the surviving residuary beneficiaries to divide the deceased beneficiary’s share among them (unless the will specifies this). Instead, the deceased beneficiary’s share passes by intestacy.