Also known as: substitute gifts · substituted gift · substitutionary gift
Written by attorneys · grounded in primary & secondary sources — see below
A statutory creation under which the surviving descendants of a deceased devisee take the property that the devisee would have received. The mechanism applies when the devisee was a grandparent, a descendant of a grandparent, or a stepchild of the testator and the devise is not in the form of a class gift.
Samantha Stone executes a will leaving her farm equipment to her brother Sebastian Santos. Sebastian dies before Samantha and leaves two children. The statute creates a substitute gift so the children receive the equipment that would have passed to Sebastian.
Victor executes a will leaving his Klimt painting to his stepson Michael. Michael dies before Victor and leaves one child. The statute creates a substitute gift so Michael's child receives the painting that would have passed to Michael.
Select any source to read its text and confirm it supports the definition.
No. The statute treats an expressly created alternative devise as superseding the substitute gift. When the will specifically provides that a nonresiduary devise passes under the residue upon the devisee's failure to survive, the alternative controls and no substitute gift is created for the descendants.
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No. The statute expressly requires that the devise not be in the form of a class gift for the substitute gift mechanism to apply under this provision.
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No substitute gift arises. The statute limits protection to grandparents, descendants of grandparents, and stepchildren of the testator. A cousin's share therefore lapses and passes under the residuary clause or by intestacy.
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Not automatically. The will must create an alternative devise that meets the statutory specificity requirement. A bare survival condition followed by a direction to the residue may or may not qualify, depending on whether the language expressly designates the residue as the taker upon failure to survive.
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…to get this picture without having to pay inheritance taxes on it. "Love, "s/Victor”. Enclosed with this letter was a substitute gift letter, dated April 1, 1963, which stated: "Dear Michael: "The 21st birthday, being an important event in life, should be celebrated accordingly. I therefore wish to give you as a…