Will Anti-Lapse and Substitute Gifts in Kansas
At a glance
| Instruments and gifts covered | Devise or bequest under a will (§ 59-615(a)). |
|---|---|
| Which devisees qualify | Spouse or relative by lineal descent or within sixth degree, by blood or adoption (§ 59-615(a)). |
| Death or failure trigger | Covered devisee or legatee dies before testator, leaving surviving issue (§ 59-615(a)). |
| Descendant survival period | Issue must survive testator; no fixed hour count in § 59-615(a). |
| Who takes and how | Surviving issue take the same estate the deceased beneficiary would have taken (§ 59-615(a)). |
| Class gifts | Covered spouse or relative in a devise or bequest follows § 59-615(a)'s relationship and survival conditions. |
| Failed gift and residue | Covered gift passes to surviving issue; § 59-615(a) directs no separate destination for an uncovered failed gift. |
| Contrary intent and survival words | Different disposition made or required by will overrides substitution (§ 59-615(a)). |
| Alternative gifts and appointments | Will can make or require a different disposition; § 59-615(a) addresses devises and bequests. |
| Trust and nonprobate reach | Will-construction rules apply to trust terms and property as appropriate (§ 58a-112). |
Requirements one by one
Covered beneficiaries and issue
Under § 59-615(a), the deceased devisee or legatee must be the testator's spouse or a relative by lineal descent or within the sixth degree, by blood or adoption. The beneficiary must die before the testator and leave issue who survive the testator. The substitute issue take the same estate the beneficiary would have taken. The subsection gives no fixed extra survival-hour requirement.
Under § 59-615(b), “issue” means offspring, progeny or lineal descendants by blood or adoption in any degree. It also supplies that definition for a will executed on or after July 1, 1973, unless that will specifically says otherwise.
The will's different disposition and trusts
The statutory substitution yields when a different disposition is made or required by the will (§ 59-615(a)). This is a question about the will's actual terms, including any alternative gift; the statute does not declare a particular survival phrase decisive.
Under § 58a-112, will-construction rules apply to trust terms and disposition of trust property as appropriate. That provision does not by itself decide whether substitute issue take a particular trust interest.
What trips people up
The statute covers the spouse as well as qualifying relatives, and “issue” can include adopted descendants in any degree. Check both the beneficiary's relationship to the testator and whether a qualifying descendant survived the testator before applying the default gift.
Common questions
Does a grandchild of the deceased beneficiary count as issue? Section 59-615(b) includes lineal descendants “in whatever degree,” whether by blood or adoption.
Does the statute say to divide the gift equally among all surviving issue? Section 59-615(a) says the issue take the same estate the deceased beneficiary would have taken; it does not prescribe equal shares in that sentence.
Statutes and sources
- Kan. Stat. Ann. §§ 59-615 and 58a-112. The source fields above contain verbatim excerpts, official section URLs, and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
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