Will Anti-Lapse and Substitute Gifts in Florida

At a glance

Requirements one by one

Covered devisees and failures

Florida's outright-devise rule applies when the deceased devisee was a grandparent or descendant of a grandparent of the testator (Fla. Stat. § 732.603(1)). It covers death before execution, failure to survive the testator, and treatment as predeceased under the will or law. The devisee's surviving descendants then take per stirpes, unless contrary intent appears in the will.

Appointments and class gifts

For a power exercised by will, § 732.603(2) uses the appointee's relationship to the donor of the power and also covers death when the power was created. A substitute descendant can take even if that descendant was not an object of the power, unless the creating language expressly excludes substitution. Under § 732.603(3)(b), alternative devises and appointments and their class members are included, even if someone was deceased when the will was executed.

Residue and contrary intent

If § 732.603 supplies no substitute, § 732.604(1) sends a failed nonresiduary devise into the residue, and § 732.604(2) sends a failed share of a multi-person residue to the remaining residuary devisees proportionally. Under § 732.603(3)(a), "my surviving children" and comparable survivorship words suffice to show contrary intent for the outright or appointment substitute gift.

Trust boundary

Under § 732.603(4), this will rule is limited to outright devises and appointments. Trust gifts, including testamentary trusts, fall under § 736.1106. That separate provision defines the distribution date for a future trust interest (§ 736.1106(1)(b)) and creates a per-stirpes substitute gift for surviving descendants when its conditions are met (§ 736.1106(2)).

What trips people up

Florida does not treat a simple survival phrase as harmless: § 732.603(3)(a) says it can defeat substitution. An appointee's kinship is tested against the donor, not the will's testator (§ 732.603(2)). Section 732.603 itself requires surviving descendants but gives no standalone fixed-hour count; the trust rule uses a different distribution date.

Common questions

Can descendants take when the devisee died before the will was signed? Yes, if § 732.603(1)'s kinship and other conditions apply; subsection (3)(b) also includes such a class member.

Does the rule reach a gift to a testamentary trust? Section 732.603(4) directs devises in trust to § 736.1106's separate rules.

Who gets an uncovered failed residuary share? Under § 732.604(2), the other residuary devisees take in proportion to their remaining interests when the residue names two or more people.

Statutes and sources

• Fla. Stat. §§ 732.603–.604 and 736.1106. The source fields above provide verbatim excerpts, official section URLs and access dates.