Antilapse

Where the statute uses it: Minn. Stat. § 524.2-603

What it means

A gift in a will can fail because the person it names is gone. Section 524.2-603 keeps a defined set of those gifts alive by moving them down a generation instead.

If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if the devisee predeceased the testator, the issue of the deceased devisee who survive the testator by 120 hours take in place of the deceased devisee. If they are all of the same degree of kinship to the devisee, they take equally. If they are of unequal degree, those of more remote degree take by representation.

The relationship limit is the whole shape of the rule. A devisee who is a grandparent of the testator, or descended from one, is inside it — among them the testator’s children, grandchildren, parents, siblings, aunts and uncles, nieces, nephews and first cousins. A friend or a charity is outside it, and so is anyone else who is not descended from the testator’s grandparent — for those gifts § 524.2-603 does nothing. The last sentence of subdivision 1 extends the section to class gifts: a person who would have been a devisee under a class gift had the person survived is treated as a devisee, whether the death came before or after the will was signed.

Subdivision 2 is the off switch, and it is easy to hit by accident. For purposes of § 524.2-601, words of survivorship — “if he or she survives me” in an individual devise, “my surviving children” in a class gift — are a sufficient indication of an intent contrary to the application of the section. Section 524.2-601 is what makes that decisive: “In the absence of a finding of a contrary intention, the rules of construction in this part control the construction of a will.” Find the contrary intention and the rule stops controlling.

Where the word shows up

Immediately before § 524.2-604, which routes a devise that fails. Both of its paragraphs open “Except as provided in section 524.2-603,” so the antilapse rule is tested first: a failed non-residuary devise becomes part of the residue, and a failed residuary share passes “to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue” — but only for a devise § 524.2-603 has not already saved. Where two residuary devisees are named and one fails, the share goes whole to the other; there is no proportion to take.

One question the sections do not answer between them. Where the instrument contains no provision of the kind § 524.2-1108(c) describes, a disclaimant is treated under § 524.2-1108(d)(1) as having died immediately before the interest was created, subject to that clause’s own survival-contingency and representation qualifiers, and § 524.2-603 reaches a devisee “treated as if the devisee predeceased the testator.” Whether a disclaimer triggers the antilapse rule is a question of law this page does not answer.