Also known as: specific devises
Written by attorneys · grounded in primary & secondary sources — see below
A testamentary disposition of a specifically identified asset. The devisee receives the exact property described if it remains in the estate at death in its original or changed form. If the property is absent, the devisee may receive unpaid proceeds from sale, condemnation, or insurance, or the devise fails unless inconsistent with the testator's intent.
Samuel Soto's will specifically devises his lakeside cabin to his niece Stella Shapiro. After executing the will, Soto replaces the roof and adds a dock. At death the cabin stands in the estate. Stella receives the cabin with its improvements because the changes constitute an insubstantial alteration of the specifically devised asset.
Sean Steele's will specifically devises his office building to his colleague Sydney Santos. The building secures an unpaid mortgage recorded years earlier. At death the mortgage remains outstanding. Sydney receives the building subject to the lien because a specific devise carries existing encumbrances without exoneration from other estate assets.
Select any source to read its text and confirm it supports the definition.
A court examines the will language for an unambiguous reference to a particular asset. Language such as "my house at 55 Owen Drive" or "my Rolex watch" creates a specific devise. A gift of a stated number of shares without identifying particular certificates is presumed general unless the will adds identifying words.
Supporting sources
The devise fails by ademption unless the proceeds remain unpaid at death or the change constitutes an insubstantial alteration. The devisee receives any unpaid sale proceeds, condemnation award, or insurance recovery. If none exist, the devise fails unless failure would contradict the testator's intent.
Supporting sources
No. A specific devise passes subject to any mortgage existing at death without right of exoneration. The general debt-payment clause does not overcome this rule.
Supporting sources
Ademption occurs only when the will identifies a particular asset that is no longer in the estate. General or demonstrative devises are not subject to ademption because they are payable from the general estate or a designated fund.
Supporting sources
…There is no evidence which requires, or, in view of the Strohm and O’Connell cases, would even permit, construing this specific devise of equal one-half portions to two named individuals as a class gift. Further emphasis for the result we have reached is supplied by other factors found in the will and extrinsic evidence.…