Also known as: substitute taker · substitute taking · alternative beneficiaries · contingent takers
Written by attorneys · grounded in primary & secondary sources — see below
Persons designated by antilapse statutes to receive property that would otherwise pass under a lapsed devise to a predeceased relative. The statutes create these substitute takers, usually the surviving descendants of the predeceased devisee, as a rebuttable rule of construction that carries out the likely intent of the testator.
Simon Stern's will left his art collection to his brother Samuel Soto. Samuel died two years before Simon, survived by his daughter Sophia Singh. Under the applicable antilapse statute, Sophia receives the collection as the substitute taker for her father's share.
Stella Shapiro exercised a power of appointment in her will to benefit her cousin Sebastian Santos. Sebastian predeceased Stella and left two children. The antilapse statute supplies those children as substitute takers for the appointed property.
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Sydney Santos's will devised her estate to her grandmother's grandchildren in equal shares. One grandchild, Sylvia, predeceased Sydney but left a son Samuel Soto. Samuel takes Sylvia's share as the substitute taker under the antilapse statute applied to the class gift.
Most antilapse statutes designate the surviving descendants of the predeceased devisee as the substitute takers. The statutes typically limit protection to devises to grandparents, descendants of grandparents, or stepchildren of the testator.
Supporting sources
Yes. Modern antilapse statutes expressly extend to class gifts. A predeceased class member is treated as a class member for purposes of creating a substitute gift for that member's surviving descendants.
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An express alternative disposition in the will that directs the property elsewhere upon the devisee's failure to survive displaces the antilapse statute. A broad residuary clause alone does not create such an alternative unless the will specifically routes the failed gift into the residue.
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No. The statute creates the substitute gift without requiring the descendants to meet the class criteria that applied to the predeceased member, such as a professional qualification stated in the will.
Supporting sources
…depending upon the will’s construction, the trust assets were to be “distribut[ed] to one of two . . . named, competing, and alternative beneficiaries.” Mercantile stated that, in order to fulfill its obligation to distribute the trust assets properly, and being concerned that an improper distribution might subject Mercantile to…