Estate Planning and Tax Lawyer Blog

Just like everywhere else, Jacksonville, Florida has families that have family heirlooms and other personal property they wish to pass to specific individuals in their Will. But what happens to the gift or your Will when that person predeceases you and you do not change your Will? The answer depends on your state’s estate laws.

Florida has what is called an antilapse statute in Section 732.603. Antilapse statutes do away with the common law (law carried over from England) practice of holding that gifts made in a Will to a beneficiary who predeceases the maker of the Will lapse upon the death of the specified recipient. So under common law, if you left Bob your autographed Joe Montana football in your Will and Bob passed away before you, then the gift to Bob would lapse and the football would pass under other provisions of the Will, usually the residuary clause. So what would happen in Florida?

Florida law states that unless a contrary intent appears in your Will, if a beneficiary (who is a grandparent or descendant of a grandparent) (i) is dead at the time of the execution of the Will; (ii) fails to survive the maker of the Will; or (iii) is required by the Will to be treated as having predeceased the maker of the Will, a substitute gift is created in the predeceased beneficiary’s surviving descendants. I will explain this to you in plain English.

The first requirement of the antilapse statute is that the beneficiary must be a grandparent or the descendant of a grandparent. This means if you created a family tree with your grandparents at the top, then everyone below them in the family tree would be included under the descendant of a grandparent. Examples are your parents, your aunts and uncles, first cousins, siblings, nieces and nephews and your children. So in our example above, if Bob is your first cousin, he would be qualify for the antilapse statute as a beneficiary. If Bob is your best friend but not related, then he would not.

The second requirement of Florida’s antilapse statute is that the beneficiary you named must have predeceased you. If the beneficiary named is still alive, the antilapse statute never comes into play. So again, if your cousin Bob passed away 6 months before you do, then the Joe Montana autographed football would pass accordingly under the antilapse statute.

If the two requirements are met, then the antilapse statute will modify the gift you leave by making it a per stirpes gift. So if your cousin Bob passes away before you do, the antilapse statute will pass the autographed Joe Montana football to Bob’s children equally. So if Bob had more than one child, then the football would either be sold and the proceeds split or the child who takes the football would owe the other children some sort of compensation.

However, the three paragraphs written above can all be thrown out with the trash if you make a contrary intent clear within your Will. So if you want Bob and Bob only to receive the football, make sure the gift to him reads something like “my Joe Montana autographed football to my cousin Bob, not per stirpes. If Bob does not survive me, then this gift shall lapse and be passed as part of the residuary estate below.” If you only state “my Joe Montana autographed football to my cousin Bob”, then the antilapse statute will create a per stirpes distribution.