Florida Anti Lapse law, estate planning and potential will contest environments

Florida Anti-Lapse Statute

When preparing a Will, it is assumed that the beneficiaries that you name will outlive you. If you expect someone to die before you, it would not make sense to leave any of your wealth and assets behind for them. However, unexpected things happen. Unfortunately, testator’s live beyond the life of their beneficiaries all the time. Sometimes, people do not update or even think about their Will for decades and those named years ago as beneficiaries have passed away. What happens to the gift(s) left for someone who is now deceased?

This concept is known as “lapse.” The original, common law understanding of lapse, was that if a beneficiary predeceases the testator, the specific gift will fall back into the residuary estate of the testator, not the estate of the deceased beneficiaries. For example, if the will states “Car to X, everything else to Y,” and X dies before the testator, the car will fall back to the residuary estate and go to Y. If both X and Y die, the testator’s estate will pass through intestacy.

This concept can sometimes yield unwanted results. For example, one might leave part of their estate to their child. If their child dies, they would want it to go to their child’s child. However, the concept of lapse would push it back into the residuary estate. To avoid this rigid outcome, many states, including Florida, have enacted anti-lapse statutes. In Florida, barring any “contrary intent” appearing in the will, if the devise is to the testator’s grandparent or any descendant of a grandparent, and the devisee predeceases the testator, the devise passes onto the devisee’s surviving descendants. Thus, lapse is avoided only with grandparents or descendants of grandparents. So, a devise to a friend would still lapse.

In Lorenzo v. Medina,[1] the testator’s will bequeathed fifty percent of the estate to the testator’s brother and fifty percent to the testator’s brother-in-law. If either beneficiary predeceased the testator, their share would pass to their respective wives. Both the brother and his wife predeceased the testator. Thus, the issue was whether the that fifty percent lapsed, and therefore fell back to the residuary estate and to the brother-in-law, or was covered by the Florida Anti-Lapse Statute and passed to the brother’s surviving heirs. The 3rd District Court of Appeal held that because the will accounted for the death of the brother, the bequest at issue was to the brother’s wife. Because the brother’s wife was not a descendant of the testator’s grandparents, the anti-lapse statute is not invoked, and therefore the gift lapses. The brother-in-law then received the entire estate.

The foregoing provides a summation of anti-lapse rules in the state of Florida. Because of the rigid consequences of lapse rules, you should review your Will often.  If you are interested in more information in how to best effectuate your wishes, please do not hesitate to contact the lawyers at Chepenik Trushin LLP, who are experienced, ready, and willing to help – Bart Chepenik, 305-613-3548, Brad Trushin, 305-981-8889, we are always available. Consult an attorney and know the estate planning landscape.




[1] 47 So. 3d 927 (3rd DCA 2010).

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