Also known as:alternative devises · substitute devise · alternate devise
Written by attorneys · grounded in primary & secondary sources — see below
A devise expressly created by a will that takes effect in place of another devise upon the occurrence of one or more specified events, including the devisee's failure to survive the testator, whether framed as a condition precedent, condition subsequent, or in any other form. A residuary clause operates as an alternative devise for a nonresiduary devise only when the will specifically directs that the nonresiduary devise passes under the residuary clause upon lapse or failure.
Sources & Authorities
How it applies
Common Examples
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Residuary Alternative for Failed Watch Gift
Abigail Alvarez executed a will leaving her antique watch to her brother Antonio Alvarado but directing that if he did not survive her the watch would be added to the residue. The residuary clause left the balance of the estate to Abigail's surviving siblings. Antonio died before Abigail, survived by his son. Because the will expressly provided that the nonresiduary gift would pass under the residuary clause upon Antonio's failure to survive, the watch entered the residue and passed to the surviving siblings rather than to Antonio's son.
Express Substitution to Husband
Adrian Aguilar left her stock options in Apollo Energy to her aunt Amelia Amari or, if Amelia did not survive Adrian, to Amelia's husband Aaron Adams. Amelia died before Adrian. Aaron survived Adrian. The will's language created an express alternative devise that vested the options in Aaron upon Amelia's failure to survive, so the options passed to Aaron rather than lapsing or triggering any statutory substitute.
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Restatements
Study Supplements
Dictionaries
Rowett v. McFarland394 N.W.2d 298 (S.D. 1986)
Common questions
Frequently Asked
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When does a residuary clause qualify as an alternative devise for a nonresiduary gift?+
A residuary clause qualifies only when the will specifically provides that the nonresiduary devise, or nonresiduary devises in general, passes under the residuary clause upon lapse or failure. General residuary language alone does not suffice.
Supporting sources
Does an alternative devise override an antilapse statute?+
Yes. When the will creates a valid alternative devise, the express terms control and the antilapse statute does not generate a substitute gift for the deceased devisee's descendants.
Supporting sources
What language creates an express alternative devise to a named substitute taker?+
Language such as a gift to A or, if A does not survive the testator, to B expressly creates an alternative devise that vests in the substitute upon the named condition.
Supporting sources
Does a direction that a gift lapses and passes to the residue create an alternative devise?+
Yes, when the will states that upon the devisee's failure to survive the gift shall lapse and pass under the residuary clause, that specific direction satisfies the requirement for the residuary to function as an alternative devise.
Supporting sources
890 A.2d 166 (Conn. App. Ct. 2006)Family Law
…he intended the bequest to lapse, the testator could have explicitly so provided. The testator also could have made an alternative devise, which “indicates a contrary intent, and hence overrides an antilapse statute . . . .” 1 Restatement (Third), supra, § 5.5, comment (g), p. 384; see also E. Halbach, Jr. & L. Waggoner,…
Real PropertyTitles · Transfer by operation of law and by willUBEFoundational