Also known as: lapse statute · lapse statutes · anti-lapse statute · anti-lapse statutes · antilapse statute · antilapse statutes · lapse doctrine · anti-lapse doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A statutory rule of construction that prevents certain devises from lapsing by substituting the predeceased devisee's descendants as takers when the devisee is a protected relative who predeceases the testator.
Leonard Lowe executed a will leaving specialized manufacturing equipment to his brother Levi Lowe. Levi died before Leonard, survived by his adult son Lance Lee. The will contained no express alternative disposition directing the equipment elsewhere upon Levi's failure to survive. Lance claims the equipment as Levi's surviving descendant under the antilapse statute.
Lillian Locke left her restaurant recipes to her daughter Lena Lawson if Lena survived her, otherwise directing the gift into the residue. Lena died before Lillian, survived by her son Luna Lang. The will expressly routed any failure of the specific gift into the residue for Lillian's surviving children. Luna asserts a substitute claim under antilapse, but the residuary beneficiaries receive the recipes.
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An antilapse statute creates a substitute gift when a protected relative predeceases the testator and leaves surviving descendants. The statute supplies those descendants as takers by representation unless the will expresses a contrary intent through an alternative devise.
Yes. A will that specifically provides that a nonresiduary devise passes under the residuary clause upon the devisee's failure to survive creates an alternative devise. That express direction controls and prevents the antilapse statute from substituting the devisee's descendants.
Modern antilapse statutes treat a predeceasing person as a class member if that person would have qualified under the class description had the person survived the testator. The statute then creates a substitute gift in that person's surviving descendants when the other statutory conditions are met.
Most antilapse statutes protect devises to grandparents and descendants of grandparents, and some also protect stepchildren. The protection does not extend to a spouse or to more remote relatives outside the statutory class.
…court in the present case was entirely of an administrative nature. Would this Court have struck down the Indiana mineral lapse statute involved in Texaco, Inc. , if that statute had provided — as an additional protection to mineral owners — that a state official should publish notice to all mineral owners of the effect…