Also known as: anti-lapse regime · antilapse · anti-lapse · antilapse statute · anti-lapse statute
Written by attorneys · grounded in primary & secondary sources — see below
A statutory rule of construction that supplies substitute takers for devises to certain relatives who predecease the testator. The statute directs the property to the predeceased devisee's surviving descendants by representation rather than allowing the gift to lapse into the residue or pass by intestacy. The rule yields to a contrary intention expressed in the will.
Amber Alonzo executed a will leaving her brokerage accounts to her niece Audrey Ashton. Audrey died six months before Amber, survived by her daughter Alice Atkins. The personal representative distributed the accounts to Alice under the antilapse regime because Audrey was a protected relative who left a surviving descendant.
Antonio Alvarado left the residue of his estate in equal shares to his stepdaughter Amelia Amari if she survived him and to his brother Albert Allen. Amelia died weeks before Antonio, survived by her son Atlas Ventures. The court applied the antilapse regime to pass Amelia's share to her son because the statute protected the stepdaughter relationship and supplied the descendant as substitute taker.
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Most antilapse statutes protect grandparents and their descendants, and some also protect stepchildren. Protection does not extend to spouses or to more remote relatives outside the statutory class.
Supporting sources
A person who would have qualified as a class member had the person survived the testator counts as a class member for antilapse purposes. The statute then supplies a substitute gift to that person's surviving descendants.
Supporting sources
A will provision that expressly routes a nonresiduary gift into the residue upon the devisee's failure to survive qualifies as an alternative devise. That direction controls and prevents the antilapse statute from creating a substitute gift to descendants.
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No. The statute operates only when the predeceasing devisee leaves descendants who survive the testator. Absent such descendants the gift lapses and passes under the will's residuary clause or by intestacy.
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…