Will Anti-Lapse and Substitute Gifts in Arizona

At a glance

Requirements one by one

Covered devisees and allocation

Under Ariz. Rev. Stat. § 14-2603(A), the deceased devisee must have been a grandparent, grandparent's descendant, or stepchild of the testator or donor of a power exercised by will. Section 14-2603(D)(4) includes a devisee already dead when the will was executed. The deceased devisee's surviving descendants take the share by representation under § 14-2603(A)(1).

Class and alternative devises

Section 14-2603(A)(2) covers eligible deceased class members but excludes gifts to “issue,” “descendants,” “heirs,” “family,” and the other listed classes. Under § 14-2603(A)(3), an expressly created alternative devise supersedes substitution even if no expressly designated alternative devisee is entitled to take. Section 14-2603(D)(1) says a residuary clause may itself be an alternative devise to a nonresiduary gift.

Survival and failed gifts

Under § 14-2603(D)(6) and § 14-2702(A), a descendant ordinarily must survive the testator by 120 hours, proved by clear and convincing evidence. Section 14-2702(D)(1)–(2) gives exceptions, including operative simultaneous-death language or a different express survival period. Subject to substitution, § 14-2604(A) moves a failed nonresiduary gift into the residue and § 14-2604(B) apportions a failed multiperson residuary share to the others. Under § 14-2101(A), property not effectively disposed of by will passes through intestacy.

Trust boundary

Section 14-2707(A)(1) separately creates a substitute gift in descendants of a future trust beneficiary who fails to survive the distribution date. Section 14-2707(C) lets an alternative future interest supersede that substitute gift even when its named beneficiary cannot take. For this trust rule, § 14-2707(E) says a will's residuary clause does not create an alternative future interest.

What trips people up

Section 14-2603(C) treats both “if he survives me” and “my surviving children” as sufficient contrary intent unless clear and convincing evidence shows otherwise. Under § 14-2603(B), an appointee's descendant can substitute even if that descendant is outside the power's objects, unless the creating language expressly prohibits it.

Common questions

Can a stepchild qualify? Yes. Section 14-2603(D)(5) defines a stepchild to include the child of a surviving, deceased, or former spouse of the testator or appointive donor, excluding a child of the testator or donor.

Does a named backup need to be able to take to defeat substitution? Under § 14-2603(A)(3), no; an express alternative devise supersedes the substitute even if its named devisee cannot take.

Statutes and sources

• Ariz. Rev. Stat. §§ 14-2603, 14-2604, 14-2101, 14-2702, and 14-2707. The source fields above contain verbatim official excerpts, URLs, and access dates.