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What happens when your chosen beneficiary, heir or personal representative (PR) dies before you do?

What if Your Beneficiaries Predecease You?

When preparing a will, people assume that the beneficiaries that they name will outlive them. Unfortunately, testator’s live beyond the life of their beneficiaries all the time. What happens to the gift left for someone who is now deceased?

The original common law understanding was that if a beneficiary predeceases the testator, the specific gift to that beneficiary would “lapse,” and therefore fall back into the residuary estate of the testator. However, in some instances, Florida “Anti-Lapse statutes” may change this result. 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, a lapse is avoided when the specific gift is to the testator’s grandparents or descendant of grandparents. However, a devise to anyone who is not a grandparent or descendant of a grandparent would still lapse if that devisee predeceased the testator, unless a contrary intent appeared in the will.

In Lorenzo v. Medina, the Testators’ will give 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 testator’s brother’s fifty percent lapsed, and therefore fell back to the residuary estate (and therefore to the brother-in-law), or if the bequest was covered by the Florida Anti-Lapse Statute and passed to the testator’s 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 was not invoked, and therefore the gift lapsed. In a surprising result, the brother-in-law received the entire estate.

An experienced estate planning and trust document attorney will take the time to address every possibility and leave nothing to chance. If you are interested in more information in how to best effectuate your wishes, please do not hesitate to contact the attorneys 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. Innovation, Integrity, Results.

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