Also known as: anti-lapse · antilapse statute · anti-lapse statute · anti lapse
Written by attorneys · grounded in primary & secondary sources — see below
A statutory rule of construction that prevents lapse of a devise to a predeceasing relative within a protected class by creating a substitute gift to the devisee's surviving descendants. The statute applies to specific, general, demonstrative, and residuary devises alike when the devisee is a grandparent or descendant of a grandparent and leaves descendants who survive the testator. The rule yields to a contrary intention expressed in the will, such as an alternative devise that routes the property elsewhere upon failure to survive.
Adam Anderson's will left his farm equipment to his brother Aaron Adams. Aaron died two weeks before Adam, survived by his two children. The antilapse statute treats Aaron as a protected devisee and creates a substitute gift, so the equipment passes to Aaron's children rather than falling into the residue.
Alexis Archer's will left her brokerage accounts to her sister Alexandra Armstrong if Alexandra survived her. Alexandra died before Alexis, leaving a son. Because the will conditioned the gift on survival, the antilapse statute does not apply and the accounts pass under the residuary clause instead of to Alexandra's son.
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Yes. A class member who fails to survive the testator but would have taken under the class gift if alive is still treated as a devisee. The statute then creates a substitute gift to that member's surviving descendants when the member falls within the protected class.
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An express alternative devise controls when the will specifically directs that a nonresiduary gift passes under the residuary clause or to another named taker upon the devisee's failure to survive. The statute yields to that manifested intent.
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Most statutes protect grandparents and their descendants, and some also protect stepchildren. The devisee must leave descendants who survive the testator for the substitute gift to operate.
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No. Language requiring the devisee to survive the testator manifests an intent that the gift lapse if the condition is not met, so the statute does not create a substitute gift.
Supporting sources
…Co. v. Treadwell , 312 Mass. 214, 218 (1942). Meserve v. Haak , 191 Mass. 220, 223 (1906). See G. L. c. 191, § 22 (1986 ed.) (antilapse statute). This last stated principle becomes important in deciding whether Jennifer, the child of the deceased grandson, takes her deceased father’s share in the trust income or whether the…