Will Anti-Lapse and Substitute Gifts in Delaware

Short answer Delaware gives a deceased will beneficiary's gift to that person's issue, per stirpes, if the beneficiary was the testator's grandparent or a lineal descendant of the testator's grandparent and the issue survive the testator by 120 hours. It covers a person already dead when the will was executed and a qualifying deceased class member. A different distribution provided by the will controls. (12 Del. C. § 2313.)
State
Delaware
Statute checked
October 5, 2026
Sources
2 statutes

At a glance

Instruments and gifts coveredWill devise or legacy, including qualifying class gift (§ 2313(a)).
Which devisees qualifyTestator's grandparent or lineal descendant of testator's grandparent (§ 2313(a)(1)).
Death or failure triggerDead at execution, fails to survive, or treated as predeceased (§ 2313(a)(1)).
Descendant survival periodIssue must survive testator by 120 hours (§ 2313(a)(1)).
Who takes and howSurviving issue take in place of beneficiary, per stirpes (§ 2313(a)(1)).
Class giftsPerson who would have taken as class member is covered whether death preceded or followed execution (§ 2313(a)(2)).
Failed gift and residueFailed share of multi-beneficiary residue passes proportionally to other residuary beneficiaries (§ 2313A(a)).
Contrary intent and survival wordsWill provision for a different distribution displaces statutory result (§§ 2313(b), 2313A(b)).
Alternative gifts and appointmentsDifferent will distribution can govern; § 2313 does not separately address exercised appointment powers.
Trust and nonprobate reach§ 2313 is framed as a will devise or legacy; it states no trust or nonprobate extension.

Requirements one by one

Covered will gifts and recipients

§ 2313(a)(1) protects a devise or legacy to the testator's grandparent or lineal descendant of a grandparent. The named beneficiary can have died before the will was executed, failed to survive the testator, or been treated as having predeceased the testator. Under § 2313(a)(2), a person who would have taken as a class member counts as a devisee or legatee whether the death occurred before or after execution.

Who takes and how long they must survive

The deceased beneficiary's issue must survive the testator by 120 hours. Qualifying issue take per stirpes in the beneficiary's place (§ 2313(a)(1)). That is a branch-based allocation, rather than an equal split among every descendant regardless of generation.

Will terms and failed residuary shares

§ 2313(b) does not apply the substitute gift when the will provides a different property distribution. The section gives no specific phrase that alone establishes that difference; the will's actual disposition matters.

If a residue is left to two or more people and one share fails, § 2313A(a) sends that share to the other residuary beneficiaries in proportion to their interests in the remaining residue, unless § 2313 saves the gift. Under § 2313A(b), a different distribution provided by the will takes priority. These sections address the failed residuary share; they do not prescribe a separate destination for every uncovered nonresiduary gift.

What trips people up

The 120-hour condition belongs to the substitute issue in § 2313(a)(1). A deceased class member can qualify even if already dead when the will was signed, but the issue still must meet the survival condition.

Common questions

Does the rule protect a gift to any friend? § 2313(a)(1) requires the original devisee or legatee to be the testator's grandparent or a lineal descendant of a grandparent.

What if only one person was named to take the residue? § 2313A(a)'s proportional reallocation applies where the residue is given to two or more persons. The will and other applicable law determine any different case.

Does a trust beneficiary automatically get this will substitute gift? § 2313 addresses devises and legacies under a will. It does not state a separate trust or beneficiary-designation rule.

Statutes and sources

  • 12 Del. C. §§ 2313 and 2313A. Verbatim official excerpts, section URL, and access dates appear in the source fields above.

Source links

Every statute quoted above, linked, with the date we checked it.

12 Del. C. § 2313 · accessed 2026-10-05
12 Del. C. § 2313A · accessed 2026-10-05
This page gives general information about statutory substitute-gift rules, not advice about a particular will or beneficiary. The instrument's words, other law, and the facts can affect the result. Check current official law and consult a licensed adviser before acting.

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