Question: One of the beneficiaries in my will recently died. Do I need to do a new will to address the share that was to go to that beneficiary?
Answer: Under the common law we inherited from England, a bequest by will lapses when the beneficiary dies before the testator. Testator is the term for one who has a legally valid will. Under common law, such gifts would go back into the estate and be distributed as part of what is known as the residuary. The residuary is what is left after specific gifts are made and most wills provide direction for distribution of that portion of the estate.
If there is no direction for distribution of the residuary, the gift would be distributed to the beneficiary or beneficiaries who would receive distribution of the testator's estate if he or she did not have a will. All states have laws that provide for distribution of assets when someone dies without a will. With some variation that distribution is made to relatives of the decedent or persons married to relatives, and if the family tree has withered completely, possibly to the State.
Years ago, Florida's legislature decided that the common law rule should not apply in Florida. It is the legislature's belief that most testators would not want a gift to lapse, but, instead, would want the gift to pass on to the heirs of the dead beneficiary. Accordingly, Florida adopted Section 732.603 of Florida Statutes, an anti-lapse statute.
The anti-lapse statute does not save all gifts when the beneficiary dies before the testator. It is limited to beneficiaries who are a grandparent or a descendent of a grandparent of the testator. That means bequests to grandparents, parents, children grandchildren and great grandchildren are not terminated by death of the beneficiary. Instead, a substitute gift is created and the gift passes to the beneficiary's surviving descendants. Gifts to neighbors, in-laws and even co-habiting "partners" are not protected by the statute.
The recent case of Lorenzo v. Medina examined Florida's anti-lapse statute. In that case, the testator's will provided his entire estate was to go "to my brother, Jose R. Medina, and to my brother-in-law, Jesus Lorenzo, in equal shares. If either of them do not survive me, the share of the deceased shall be given to their surviving spouse."
When the testator died, both Jose R. Medina and his wife were dead. The trial court applied the anti-lapse statute and directed that 50% of the testator's estate be distributed to the children of Jose and his wife. The brother-in-law appealed.
The appellate court recited the common law rule of lapsing gifts. It explained that Florida's anti Lapse Statute, being in derogation of the common law, must be strictly construed.
The testator's will directed 50% of his estate be distributed to Jose R. Medina, but if Jose died before the testator his share was to go to Jose's wife. Jose did die before the testator, which meant that the will directed distribution to his wife. Jose's wife was not a direct descendant of the testator's grandparent so the bequest lapsed.
Better drafting of the will may have avoided this problem. If the testator had intended that the children of Jose and Jose's wife should share their gift if they were both dead, the will could have said so. It did not, and 50% of the testator's estate will now be distributed as if the testator had no will at all, That is not likely the result he wanted.
Florida's anti-lapse statute and the Lorenzo case emphasize the importance of details in estate planning. When drafting a will, a testator needs to decide what is to be done with a gift if the beneficiary is dead. In the Lorenzo case, it appears the testator did not think both his brother and his brother's wife would die before him. He probably should have.
If you are in the process of estate planning, be sure your attorney takes the time and makes the effort to develop a plan for all contingencies. If you already have a will, I suggest you take it out and read it in light of the Lorenzo case and Florida's anti-lapse statute. 732.603. If you have any question, you should consult with an experienced attorney.
By: William G. Morris, Esquire
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or
The Marco Island Eagle
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