Florida’s Antilapse Statute

Many individuals execute wills before their death, leaving certain gifts to their family members, friends, and other individuals. From time to time, however, certain individuals named in a will (i.e., “devisees”) predecease (i.e., die before) the person leaving them the gift. If a new will is not executed, a question arises concerning who should then be entitled to that property. Before the modern Florida statutes, under common law, if a specific or general devise (i.e., a gift in a will of either specific property or a particular amount of money/stock, respectively) lapsed because the beneficiary predeceased the testator, the gift went to the residuary of the estate, meaning that it would become part of the general estate and would go to the remaining living heirs.

Disagreeing with the common law, many state legislatures drafted statutes which reversed or otherwise altered the common law rule. Florida is among the states that have chosen to deviate from the common law rule by adopting an “antilapse statute.” Under the Florida Antilapse Statute, when a particular devisee predeceases the testator, the gift to the devisee does not fall into the residue of the estate or pass to the heirs of the testator by intestacy. Instead, the gift descends to the issue of the predeceased devisee. Specifically, Florida Statute § 732.603(1) provides as follows: “Unless a contrary intent appears in the will, if a devisee who is a grandparent, or a descendant of a grandparent, of the testator: (a) is dead at the time of the execution of the will; (b) fails to survive the testator; or (c) is required by the will or by operation of law to be treated as having predeceased the testator, a substitute gift is created in the devisee’s surviving descendants who take [in equal shares] the property to which the devisee would have been entitled had the devisee survived the testator.”

However, under Florida Statute § 732.603, if the testator uses language that indicates he or she does not want the gift to pass to the descendants of the devisee, the Florida Antilapse Statute will not apply. While a majority of states have held that words of survivorship are not strong enough to show a contrary intent, the Florida statute specifically states that words of survivorship are sufficient to demonstrate a contrary intent. Thus, if the testator includes phrases such as “if he [or she] survives me,” or “to my surviving children,” the Florida Antilapse Staute will not apply. For example, a mother may specify in her will, “I give my wedding ring to my daughter, Mary, if she survives me.” If Mary dies before her mother, the phrase “if she survives me” prevents the Florida Antilapse Statute from kicking into effect because that phrase is sufficient to demonstrate that her mother only wanted to give Mary the ring if Mary was alive at the time the will is probated (i.e., when the provisions of the will are carried out). As a result, Mary’s children will not receive the ring.

It is also important to note that the Florida Antilapse Statute makes it a requirement that the devisee be a grandparent or a lineal descendant of a grandparent for the statute to be applicable. Consequently, if a gift is left to a friend or a distant relative that predeceased the testator, the aforementioned statute would not apply to the devise.

If you or someone you know has an issue regarding lapsed gifts in a will, or if you would like to take appropriate action to prevent issues with such lapsed devises, please do not hesitate to contact the law offices of Chepenik Trushin LLP. The experienced attorneys at Chepenik Trushin LLP are ready, willing, and able to assist with such estate planning needs. Please feel free to contact us for an initial consultation.