Nonlapse statute - sustany/dvg GitHub Wiki

A phrase interchangeable with lapse statute or more commonly referred to as an antilapse statute; a statute under estates and trusts law that sets forth the procedure that applies when a devisee predeceases a testator to prevent a bequest from lapsing. In other words, when a beneficiary named in a will dies before the person who is devising that property, the gift intended for that beneficiary passes through succession to the beneficiary�s descendants.

In California, for example, Probate Code � 21110 is its antilapse statute which specifies that a transferee�s issue can take in their place, subject to limitation by contrary intentions set forth or construed in the governing will, trust, or other instrument. Its language is as follows:

(a)�Subject to subdivision (b), if a transferee is dead when the instrument is executed, or fails or is treated as failing to survive the transferor or until a future time required by the instrument, the issue of the deceased transferee take in the transferee�s place in the manner provided in Section 240. A transferee under a class gift shall be a transferee for the purpose of this subdivision unless the transferee�s death occurred before the execution of the instrument and that fact was known to the transferor when the instrument was executed.

(b)�The issue of a deceased transferee do not take in the transferee�s place if the instrument expresses a contrary intention or a substitute disposition. A requirement that the initial transferee survive the transferor or survive for a specified period of time after the death of the transferor constitutes a contrary intention. A requirement that the initial transferee survive until a future time that is related to the probate of the transferor�s will or administration of the estate of the transferor constitutes a contrary intention.

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(c)�As used in this section, �transferee� means a person who is kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor, but does not mean a spouse of the transferor.

Most states now have some version of an antilapse statute. However, in a jurisdiction without antilapse statutes, these gifts would typically revert back to the estate of the testator and the residue would be divided among the testator�s heirs, who would then become residuary beneficiaries.