Will Anti-Lapse and Substitute Gifts in Delaware
At a glance
| Instruments and gifts covered | Will devise or legacy, including qualifying class gift (§ 2313(a)). |
|---|---|
| Which devisees qualify | Testator's grandparent or lineal descendant of testator's grandparent (§ 2313(a)(1)). |
| Death or failure trigger | Dead at execution, fails to survive, or treated as predeceased (§ 2313(a)(1)). |
| Descendant survival period | Issue must survive testator by 120 hours (§ 2313(a)(1)). |
| Who takes and how | Surviving issue take in place of beneficiary, per stirpes (§ 2313(a)(1)). |
| Class gifts | Person who would have taken as class member is covered whether death preceded or followed execution (§ 2313(a)(2)). |
| Failed gift and residue | Failed share of multi-beneficiary residue passes proportionally to other residuary beneficiaries (§ 2313A(a)). |
| Contrary intent and survival words | Will provision for a different distribution displaces statutory result (§§ 2313(b), 2313A(b)). |
| Alternative gifts and appointments | Different 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.
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