Also known as: antilapse statutes · anti-lapse statute · anti-lapse statutes · anti lapse statute
Written by attorneys · grounded in primary & secondary sources — see below
A statutory rule of construction that creates a substitute gift in favor of the descendants of a predeceasing devisee within a protected class of relatives when the devisee fails to survive the testator.
Austin Abbott's will devised his farm to his brother Ben. Ben died before Austin but left two children who survived Austin. The antilapse statute treats Ben as a protected devisee and creates a substitute gift so the farm passes to Ben's children by representation instead of lapsing.
Alan Ackerman's will left a specific bequest to his sister Anita if she survived him. Anita predeceased Alan and left a child who survived. Because the will conditioned the gift on survival, the antilapse statute does not apply and the bequest lapses.
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Modern antilapse statutes treat an individual who would have taken under a class gift if the individual had survived the testator as a class member for purposes of creating a substitute gift when the individual is within the protected group and leaves surviving descendants.
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A devise conditioned on the beneficiary surviving the testator manifests an intent that the gift lapse if the beneficiary dies first, so the antilapse statute yields to that expressed condition.
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Most antilapse statutes protect devises to grandparents and descendants of grandparents, and some also protect stepchildren, but they ordinarily exclude the testator's spouse.
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An antilapse statute yields when the will expressly creates an alternative disposition that takes effect upon the devisee's failure to survive, such as a specific direction routing the gift to the residue.
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…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…