How Does Florida’s Anti-Lapse Statute Work?

/ / Law Blog
anti-lapse statute

You may have heard of Florida’s anti-lapse statute but aren’t clear on its intricacies. We’re here to provide you with a detailed explanation of how this statute works and why it’s important to understand when you pursue estate planning.

If you still have questions or you’re interested in estate planning, we invite you to call Crary Buchanan Attorneys at Law today. Our experienced estate planning lawyers are here to help you secure your future. 

What Happens When There’s a Lapse in a Will?

For a lapse to occur, the beneficiary of your will or trust would need to pass away before you do. When people create wills, they do so with the intent to ensure that their assets go to loved ones when they die. But when their beneficiaries pass away first, those assets simply revert to the testator or grantor.

This isn’t entirely uncommon, but when both the beneficiary and the testator pass away, those assets go back to the original estate, at which point probate can result in those assets going to unintended sources. As you can imagine, this can become a problematic situation for the family.

Florida’s Anti-Lapse Statute

This is where Florida’s anti-lapse statute comes into play. An anti-lapse statute is a law that prevents an heir from automatically losing their inheritance if they die soon after the person who left them the property. This means that if a spouse dies and leaves a house to their partner, and the partner dies soon afterward, then the house will not go to any other heirs. This could happen even if there are children or other relatives who are entitled to inherit some of the deceased partner’s share.

Many people will make wills prior to their death and leave certain gifts to family members, friends, or other individuals. Sometimes, however, certain people named in wills (i.e., “devisees”) may predecease the person who leaves them the gift. A question will arise about who is entitled to the property if a new will is not made. 

The common law before the modern Florida statutes was that if a specific or broad devise (i.e., a gift in a will containing specific property or money/stock) expired because the beneficiary predeceased a testator, it went to the residuary. This meant that the gift would be part of the general estate and go to the remaining living descendants.

Many state legislatures have drafted statutes that reverse or modify the common law rule, despite their disagreement with it. Florida is one of those states that has chosen to depart from the common law by adopting an “anti-lapse statute.” 

Florida’s Anti-lapse Statute provides that if a specific devisee predeceases a testator, the gift to them does not pass to the heirs by intestacy or into the estate’s residue. Instead, the gift passes to the predeceased devisee. 

Florida Statute SS 732.603(1) states that a devisee, who is a grandparent or descendant of a great-grandparent of the testator, is deemed to have died at the time of execution. If the testator dies or fails to survive, or if the will or operation of law requires, a substitute gift will be created in the devisee’s surviving descendants, who will take (in equal parts) the property to the extent the devised been entitled.

Importantly, Florida’s Anti-lapse Statute requires that the devisee must be either a grandparent or a descendent. Florida’s Anti-lapse Statute does not apply to gifts that are left to friends or distant relatives who predeceased the testator.

Conclusion

It is normal to assume that your beneficiaries will outlive you when you prepare a Will. It is not a good idea to leave assets and wealth behind if you don’t expect to be able to live with your loved ones. Unexpected things can happen. Sometimes, testators can live past the lives of their beneficiaries. What’s more, people forget to update their Wills for years, and beneficiaries they had named many years ago are no longer living. 

This is why it’s so important to stay on top of your estate planning. We encourage you to contact Crary Buchanan Attorneys at Law for experienced legal counsel regarding your estate planning needs. We will make sure that you are prepared for the future so that you can rest easy knowing that your wishes will be met. 

Call Crary Buchanan Today

Are you looking for legal advice regarding your estate planning? Crary Buchanan Attorneys at Law can help you today. We are experts in estate planning and all it involves. We’d be happy to help you achieve the outcome that you want. Contact our office today at (772) 287-2600. You may also reach out to us via email at info@crarybuchanan.com.

The information in this blog post is for reference only and not legal advice. As such, you should not decide whether to contact a lawyer based on the information in this blog post. Moreover, there is no lawyer-client relationship resulting from this blog post, nor should any such relationship be implied. If you need legal counsel, please consult a lawyer licensed to practice in your jurisdiction.