nonlapse statute

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A phrase interchangeable with lapse statute or more commonly referred to as an antilapse statute; a statute under estates and trusts law that sets forth the procedure that applies when a devisee predeceases a testator to prevent a bequest from lapsing. In other words, when a beneficiary named in a will dies before the person who is devising that property, the gift intended for that beneficiary passes through succession to the beneficiary’s descendants.

In California, for example, Probate Code § 21110 is its antilapse statute which specifies that a transferee’s issue can take in their place, subject to limitation by contrary intentions set forth or construed in the governing will, trust, or other instrument. Its language is as follows:

(a) Subject to subdivision (b), if a transferee is dead when the instrument is executed, or fails or is treated as failing to survive the transferor or until a future time required by the instrument, the issue of the deceased transferee take in the transferee’s place in the manner provided in Section 240. A transferee under a class gift shall be a transferee for the purpose of this subdivision unless the transferee’s death occurred before the execution of the instrument and that fact was known to the transferor when the instrument was executed.

(b) The issue of a deceased transferee do not take in the transferee’s place if the instrument expresses a contrary intention or a substitute disposition. A requirement that the initial transferee survive the transferor or survive for a specified period of time after the death of the transferor constitutes a contrary intention. A requirement that the initial transferee survive until a future time that is related to the probate of the transferor’s will or administration of the estate of the transferor constitutes a contrary intention.

 

(c) As used in this section, “transferee” means a person who is kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor, but does not mean a spouse of the transferor.

Most states now have some version of an antilapse statute. However, in a jurisdiction without antilapse statutes, these gifts would typically revert back to the estate of the testator and the residue would be divided among the testator’s heirs, who would then become residuary beneficiaries.

[Last updated in July of 2020 by the Wex Definitions Team]