Also known as: antilapse · anti lapse · anti-lapse statute · antilapse statute
Written by attorneys — see sources below.
A statutory rule of construction that prevents a devise from lapsing when the named beneficiary predeceases the testator. The statute substitutes the beneficiary's surviving descendants for the beneficiary when the beneficiary falls within a protected class of relatives and leaves descendants who survive the testator.
Audrey Ashton left a will devising her farm to her brother Alan Ackerman. Alan died before Audrey, survived by his daughter Anita Ali. Because Alan was a descendant of Audrey's grandparent and left a surviving descendant, the antilapse statute substituted Anita for Alan so that she received the farm.
Aisha Ahmed devised her house to her cousin Antonio Alvarado provided he survived her. Antonio predeceased Aisha and left two children. The court held that the express survivorship condition manifested an intent contrary to the antilapse statute, so the house passed under the residuary clause rather than to Antonio's children.
John N. Swanson executed his will on March 1, 1990. The residuary clause bequeathed one-half of the residue property to Hazel Brennan of Guilford, Connecticut, if she survives me. Brennan was Swanson's stepdaughter. Kathleen Smaldone, Brennan's child, was also named as a residuary legatee in the will. Brennan died on January 2, 2001. Swanson died seventeen days later. The will was admitted to probate on February 9, 2001. On April 26, 2002, the Probate Court concluded that the antilapse statute was not operative and that the bequest to Brennan lapsed, passing to the intestate estate. Fred Ruotolo and Charlene Ruotolo, beneficiaries under the will, filed a motion for appeal to the Superior Court from the Probate Court decision. Smaldone filed a cross appeal. Following a de novo hearing in the Superior Court, the court affirmed the judgment of the Probate Court. Smaldone appealed the Superior Court decision to the Appellate Court of Connecticut.
View caseMost antilapse statutes protect grandparents and their descendants, including stepchildren under the Revised Uniform Probate Code. The statute does not protect a spouse or unrelated persons.
Supporting sources
Yes. A person who would have been a class member had the person survived the testator is treated as a class member for antilapse purposes when the person is within the protected family group and leaves surviving descendants.
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An express alternative devise in the will defeats the statute when the will specifically directs that a nonresiduary gift passes under the residuary clause upon the beneficiary's failure to survive the testator.
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The antilapse statute does not apply. The gift lapses and passes under the residuary clause or to the testator's heirs by intestacy.
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…Jr., had children bom after the testator’s death makes a violation of the mie an actual fact. : The Massachusetts antilapse statute applies only to testamentary gifts to a child or other relation of a testator who predeceased the testator leaving issue surviving the testator and to class gifts to children or other…