Also known as: substitutionary gifts · substitutional gift · substitute gift
Written by attorneys · grounded in primary & secondary sources — see below
A statutory gift created in the surviving descendants of a deceased devisee who was a grandparent, a descendant of a grandparent, or a stepchild of the testator. The gift arises when the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants.
Selena Singh executes a will leaving her vacation home to her cousin Steven Silva. Steven dies before Selena, survived by his daughter Sabrina. Because Steven was a descendant of Selena's grandparent and left a surviving descendant, the statute creates a substitutionary gift that passes the home to Sabrina rather than allowing the gift to lapse into the residue.
Thomas executes a will leaving his lake cabin to his nephew Nathan. Nathan dies before Thomas, survived by two children. Because Nathan was a descendant of Thomas's grandparent and left surviving descendants, the statute creates a substitutionary gift that passes the cabin to Nathan's children rather than allowing the gift to lapse.
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A substitutionary gift arises when a non-class devisee who is a grandparent, descendant of a grandparent, or stepchild of the testator fails to survive the testator but leaves surviving descendants. The statute creates the gift in those descendants by representation.
Supporting sources
Yes. When the will expressly creates an alternative disposition that takes effect upon the devisee's failure to survive, that alternative supersedes the statutory substitutionary gift.
Supporting sources
For class gifts the statute creates a substitutionary gift in the surviving descendants of any deceased class member who was a protected relative, with the descendants taking the share the deceased member would have received.
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Ambiguous words such as surviving are construed to refer to the distribution date, but that construction does not prevent a substitutionary gift to the deceased beneficiary's descendants who survive that date.
Supporting sources
…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…