Will Anti-Lapse and Substitute Gifts in District of Columbia
At a glance
| Instruments and gifts covered | Will devise or bequest; TOD-deed effect expressly subject to will lapse section (§§ 18-308, 19-604.13(a)). |
|---|---|
| Which devisees qualify | Any devisee or legatee; no testator-kinship condition stated (§ 18-308). |
| Death or failure trigger | Devisee or legatee dies before testator and leaves issue who survive (§ 18-308). |
| Descendant survival period | Issue must survive testator; general 120-hour rule where devolution depends on survival, subject to exceptions (§§ 18-308, 19-502, 19-506). |
| Who takes and how | Surviving issue take as the beneficiary would have if alive (§ 18-308). |
| Class gifts | § 18-308 supplies no separate class-member or class-share formula. |
| Failed gift and residue | Failed or void devise/bequest is included in residue, if any, absent contrary will intent (§ 18-308). |
| Contrary intent and survival words | Different will disposition displaces substitution; contrary will intention changes residue default (§ 18-308). |
| Alternative gifts and appointments | Different will disposition may govern; § 18-308 gives no separate appointment formula. |
| Trust and nonprobate reach | Will rule; TOD-deed statute expressly references § 18-308; no separate trust extension stated there (§§ 18-308, 19-604.13(a)). |
Requirements one by one
Who takes the deceased beneficiary's gift
§ 18-308 covers a devisee or legatee who dies before the testator, leaving issue who survive the testator. It does not name a required family relationship between the original beneficiary and the testator. The issue take the devised or bequeathed estate as the deceased beneficiary would have taken it if alive; the section gives no separate class-gift allocation formula.
Survival and failed gifts
§ 19-502 generally deems a person to have predeceased another unless survival by 120 hours is shown by clear and convincing evidence when devolution depends on survival. § 19-503 applies a similar rule to survival language in a governing instrument. § 19-506 states exceptions, including operative simultaneous-death terms or an express different survival period. Section 18-308 itself says only that the issue must survive the testator.
Under § 18-308, a devise or bequest that fails, is void, or otherwise cannot take effect is deemed included in the will's residuary devise or bequest, if any, unless the will indicates a contrary intention. The same section's substitute gift yields when the will makes or requires a different disposition.
Other instruments
§ 19-604.13(a) expressly makes the effect of a transfer-on-death deed subject to § 18-308. It separately states the designated beneficiary's survival condition and a co-beneficiary reallocation rule. That cross-reference matters when a deed beneficiary dies, but § 18-308 alone does not decide every deed term or trust disposition.
What trips people up
DC's will rule says “issue who survive the testator” without stating a number of hours (§ 18-308). The 120-hour default comes from the separate simultaneous-death chapter, and § 19-506 can change that default in the situations it lists.
Common questions
Must the deceased beneficiary be related to the testator? § 18-308 names a devisee or legatee without a kinship condition; the issue, death, and will-term conditions still apply.
Does a void will gift disappear from the estate? Section 18-308 puts it in the residue, if the will has one, unless the will shows a contrary intention.
Does a transfer-on-death deed ignore the will lapse section? No. § 19-604.13(a) expressly lists § 18-308 among the provisions to which its effect is subject.
Statutes and sources
- D.C. Code §§ 18-308, 19-502, 19-503, 19-506 and 19-604.13. Verbatim official excerpts, section URLs, 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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