Anti-lapse statute

What it means

A gift in a will to somebody who dies first normally fails — it lapses — and what was left to them falls into the residue for whoever takes the remainder. Anti-lapse statutes carve out an exception, and nearly every state has one.

Where the statute applies, the gift passes instead to the descendants of the person who died first. A share left to a daughter who predeceased her mother goes to that daughter's children rather than back into the pot.

Two limits do most of the work. The statute usually protects only beneficiaries within a defined family relationship to the person who made the will, and it applies only if that beneficiary left descendants. A gift to a friend who dies first is not saved by it. A will can also say expressly what happens, and where it does, the will governs.

Why it matters

It is the difference between a grandchild inheriting their parent's share and that share going to their aunts and uncles, and families rarely guess it correctly.

It applies by default, without anybody invoking it, so an executor who distributes on the plain words of the will can distribute to the wrong people.

When you are likely to meet it

• When a beneficiary named in the will died before the person who wrote it.
• When a will was written decades ago and some of the people named have since died.
• When deciding whether a share belongs to a deceased beneficiary's children or falls into the residue.

How this varies by state

Which relatives the statute protects, and whether it reaches beneficiary designations and trusts as well as wills, is set by state law and varies more by state than the phrase suggests.

Related terms

• BeneficiarySomeone who receives something because a document says so.
• Contingent beneficiaryThe person who receives an account or policy if the first-named beneficiary has died or cannot take it.
• Per capitaA way of dividing an inheritance among the beneficiaries who are actually alive, so a deceased beneficiary's children receive nothing.
• Per stirpesA way of dividing an inheritance so that if a beneficiary has died, their share passes down to their own children rather than to the other beneficiaries.
• Primary beneficiaryThe first person in line on an account or policy, ahead of any contingent beneficiary.
• Residuary estateWhatever is left after specific gifts, debts, taxes and expenses have been dealt with. Most wills give it away in a single clause.
• StepchildA partner's child you did not adopt. Generally not a descendant for inheritance, however they were raised.
• Uniform Probate CodeA model act many states adopted in part — which is why their probate rules rhyme without matching.
• WillA written document saying who should receive what, and who should be in charge of seeing that it happens.

Sahvelo guidance that uses this

• When a beneficiary died first