Also known as: anti-lapse statutes · antilapse statutes · anti lapse statute · anti-lapse statute
Written by attorneys · grounded in primary & secondary sources — see below
A statutory rule of construction that prevents certain devises from lapsing when a protected relative predeceases the testator. The statute substitutes the surviving descendants of the predeceased devisee as takers in place of the original beneficiary. The rule applies unless the will expresses a contrary intent.
Lydia devised the Greenway duplex to her nephew Mark. Mark died six months before Lydia and left two children who survived her. The jurisdiction's antilapse statute covers gifts to nephews. The children receive the duplex as substitute takers because the statute supplies them in place of Mark.
Percy devised forty percent of his construction firm to his brother Travis. Travis died two years before Percy and left three adult children including Truman. The will contained no survival condition or express direction routing lapsed gifts to the residuary beneficiary. Truman receives the interest because the antilapse statute creates a substitute gift in Travis's surviving descendants.
Select any source to read its text and confirm it supports the definition.
A residuary clause does not automatically displace an antilapse statute. The statute yields only when the will expressly provides that a nonresiduary gift passes to the residue upon failure or lapse. General residuary language alone is insufficient to create an alternative devise that overrides the statutory substitute gift.
Supporting sources
Most antilapse statutes protect devises to grandparents and their descendants. Some statutes also cover stepchildren. The statute does not protect a testator's spouse or more remote relatives outside the specified class.
Supporting sources
The antilapse statute does not apply. The devise lapses and passes under the residuary clause or by intestacy according to the usual rules governing failed gifts.
Supporting sources
Courts require clear evidence of contrary intent from the will itself or admissible extrinsic evidence. General statements about family plans are usually insufficient to overcome the statutory default favoring the predeceased devisee's descendants.
Supporting sources
…supra, § 50.11, p. 96. Section 5.5 of the Restatement (Third) of Property, Wills and Other Donative Transfers (1999), addresses anti-lapse statutes. Comment (f) to that section provides in relevant part: “Antilapse statutes establish a strong rule of construction, designed to carry out presumed intention. They are based on the…