Also known as: substitutional gifts · substitute gift
Written by attorneys · grounded in primary & secondary sources — see below
A statutory mechanism that creates a gift in favor of the surviving descendants of a predeceasing devisee. The mechanism applies when the devisee is a grandparent, descendant of a grandparent, or stepchild of the testator, the devise is not in class form, and the will contains no contrary intent.
Skylar Sullivan's will leaves her vacation home to her cousin Spencer Silver. Spencer dies two weeks before Skylar, survived by his daughter Simone Sanders. The statute creates a substitute gift that passes the home to Simone rather than allowing the devise to lapse into the residue.
Tessa Thornton’s will leaves her lake cabin to her niece Nora Nash. Nora dies three months before Tessa, survived by her two children. The statute creates a substitute gift that passes the cabin to Nora’s children rather than allowing the devise to lapse into the residue.
Select any source to read its text and confirm it supports the definition.
A substitute gift arises when a protected devisee fails to survive the testator, the devise is not in class form, and the devisee leaves surviving descendants. The statute treats the descendants as taking the share the devisee would have received.
Supporting sources
An express alternative devise in the will supersedes the statutory substitute gift. The will must specifically direct that the nonresiduary devise passes under the residue or to another named taker upon the devisee's failure to survive.
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Yes. Modern antilapse statutes expressly include stepchildren of the testator within the protected class, allowing their surviving descendants to receive a substitute gift when the stepchild predeceases.
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The statute treats the predeceasing class member as still within the class for antilapse purposes. The member's surviving descendants then take the share by substitution if the member falls within a protected relationship.
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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…