When creating a will, the testator (the person who creates the will) names one or more beneficiaries to receive their property upon their death. Beneficiaries are usually assigned with the assumption they will live long enough to obtain the testator’s property; however, this is not always the case. Sometimes a beneficiary passes away before receiving property devised to them in a will.

What happens if a beneficiary dies before receiving their devise?

When a beneficiary dies before receiving property given to them in a will, things can get very complicated. The big question is, who will now receive that property? The answer depends on when the beneficiary died and the relationship of the beneficiary to the testator.

What happens when a gift lapses?

In the event a beneficiary dies before the testator of a will, unless an alternative beneficiary has been named, the devised property may “lapse”. When a gift lapses, it is transferred to the residuary of the testator’s estate. The residuary beneficiaries are then entitled to the lapsed gifts.

If all beneficiaries predecease the testator, the gifts will not lapse. Instead, the entire estate will be subject to intestate distribution and will be distributed to the testator’s descendants, per stirpes.

What is Florida’s anti-lapse statute?

Florida also has an “anti-lapse” statute that may dictate where property passes if a beneficiary predeceases the testator. If the anti-lapse statute is applicable, the gift will pass to the deceased beneficiary’s descendants, per stirpes.  The anti-lapse statute only applies if the descendants of the deceased beneficiary are also the descendants of the testator’s grandparents. For example:

• If the deceased beneficiary was the testator’s brother, and he is survived by his children, the gift will pass to those children, per stirpes, because they are descendants of the testator’s grandparents.
• If the deceased beneficiary was the testator’s friend who is not related to the testator, the friend’s descendants will not inherit the gift because they are not descendants of the testator’s grandparents. Instead, the gift would lapse.

So, essentially, to qualify for Florida’s anti-lapse statute, the deceased beneficiary must have been an immediate family member of the testator.

What happens if the testator predeceased the beneficiary?

On occasion, a beneficiary will die after the testator, but before the completion of probate administration. If the testator predeceases the beneficiary, the lapse and anti-lapse statutes will not apply to the devised property. Instead, the property will pass to the deceased beneficiary’s estate and be distributed according to the terms of their will. If the deceased beneficiary did not create a will, the property will pass to their descendants under the intestacy statute, per stirpes.

When dealing with property that was devised to a beneficiary who is now deceased, the property will either lapse, anti-lapse, or pass to the deceased beneficiary’s estate. Remember that both lapse and anti-lapse only apply if the beneficiary died before the testator. Otherwise, the property will usually pass to the deceased beneficiary’s estate.

How can I predict what will happen to my property?

The best way to protect your loved ones from having to figure out what happens is to leave a clear will that disposes of all of your property. At our estate planning consultations we ask questions like “what if this person dies before you?” This helps avoid unintended distributions.

If you have any further questions about a beneficiary passing away before receiving devised property, or how to plan for such an event, please contact us today.

Written by Alison Koukoulis and edited by Patrick D. Quarles