Will Anti-Lapse and Substitute Gifts in Alabama
At a glance
| Instruments and gifts covered | Will devise, including potential class member; will rules apply to trust terms as appropriate (§§ 43-8-224, 19-3B-112). |
|---|---|
| Which devisees qualify | Devisee must be testator's grandparent or lineal descendant of a grandparent (§ 43-8-224). |
| Death or failure trigger | Devisee dead when will executed, fails to survive testator, or treated as predeceased (§ 43-8-224). |
| Descendant survival period | Substitute issue must survive testator by five days (§ 43-8-224). |
| Who takes and how | Issue in same degree take equally; unequal degrees take by representation (§ 43-8-224). |
| Class gifts | Would-be class member counts whether death was before or after will execution (§ 43-8-224). |
| Failed gift and residue | Other failed nonresiduary gift enters residue; failed multiperson residuary share goes proportionately to other residuary devisees (§ 43-8-225). |
| Contrary intent and survival words | Will's contrary intention controls construction; § 43-8-224 itself requires substitute issue's five-day survival (§§ 43-8-222, -224). |
| Alternative gifts and appointments | The will's expressed intention controls its dispositions, including any stated alternative (§ 43-8-222). |
| Trust and nonprobate reach | Trust or trustee receiving will devise is devisee; will-construction rules apply to trust terms as appropriate (§§ 43-8-1(6), 19-3B-112). |
Requirements one by one
Who qualifies and when
Under § 43-8-224, the deceased devisee must be the testator's grandparent or a lineal descendant of a grandparent. The provision covers death before the will was executed, failure to survive the testator, and a devisee treated as predeceased. A would-be class member qualifies whether death came before or after execution.
Issue and allocation
The deceased devisee's issue must outlive the testator by five days under § 43-8-224. If surviving issue are all at the same degree of kinship to the devisee, they take equally. If degrees differ, more remote issue take by representation.
Failed gifts and trusts
Under § 43-8-225(a), another failed nonresiduary devise enters the will's residue. Under subsection (b), a failed share of a residue left to multiple people passes proportionately to the other residuary devisees, subject to § 43-8-224.
Under § 43-8-1(5), a devise is a testamentary disposition of real or personal property. Subsection (6) treats a trust or trustee receiving a will devise as the devisee, rather than the trust beneficiaries. Under § 19-3B-112, will-construction rules apply to trust terms and property as appropriate, subject to the trust chapter's other provisions. Those words require examining the actual trust provision before treating a beneficiary's interest as a will devise.
What trips people up
Under § 43-8-222, the will's indicated contrary intention controls these construction rules. Read any actual backup or survival terms in the will before applying substitution.
Common questions
Does the deceased beneficiary have to be the testator's child? No. Section 43-8-224 uses the broader grandparent or lineal-descendant-of-grandparent test.
What if the person died before the will was signed? The same section expressly covers that timing, including a would-be class member, if its other conditions are satisfied.
Statutes and sources
- Ala. Code §§ 43-8-1, 43-8-222, 43-8-224, 43-8-225 and 19-3B-112. The source fields above contain verbatim current official excerpts, section URLs and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
What does Alabama law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current Alabama law apply to your situation, with citations you can check.
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