Wills, Trusts, and Estates

Antilapse

Nearly all states have antilapse statutes that substitute other beneficiaries for predeceased devisees under certain circumstances. This is because it is presumed that testators would prefer a substitute gift to the devisee's descendants rather than for it to pass by intestacy.

Antilapse statutes only apply if the devisee has a close enough relationship to the testator, as specified by state statute. The UPC's and Virginia's versions applies to grandparents and descendants thereof. UPC § 2-605; VA Code § 64.2-418.

Antilapse statutes can be avoided by specifying in the will what happens if the devisee does not survive the testator. If the will implies contrary intent (e.g., "to my living brothers, share and share alike"), the antilapse statute will also be avoided.

However, generic "words of survivorship" are not enough of an indication of contrary intent to prevent application of antilapse statutes. UPC § 2-603.

Words of Survivorship

Words of survivorship are generic, boilerplate phrases that claim to condition gifts upon people surviving the testator, such as "if he survives me" or "my surviving children."

UPC § 2-603(b)(3) disregards words of survivorship when looking for contrary intent for antilapse statutes despite them literally stating contrary intent.

Virginia does not explicity disregard such words. It leaves it ambiguous.

Dean Todd recommends reading all 7,000 words of UPC § 2-603.