Will Anti-Lapse and Substitute Gifts in Kentucky
At a glance
| Instruments and gifts covered | Will devise or bequest; trust construction rules apply as appropriate (KRS 394.400; 386B.1-100). |
|---|---|
| Which devisees qualify | Any deceased devisee or legatee with surviving issue; no testator-kinship condition in the quoted rule (KRS 394.400). |
| Death or failure trigger | Beneficiary dead before testator or already dead when will made; class and co-owner rules specify pretestator death (KRS 394.400, 394.410). |
| Descendant survival period | Issue must survive testator; no fixed hour count appears in KRS 394.400. |
| Who takes and how | Dead beneficiary's surviving issue take that beneficiary's gift; class member's descendants take the share under KRS 394.410(1). |
| Class gifts | Deceased class or tenant-in-common member’s descendants take; absent descendants, surviving devisees take (KRS 394.410(1)). |
| Failed gift and residue | Otherwise ineffective devise or bequest enters will residue unless contrary intent appears (KRS 394.500). |
| Contrary intent and survival words | Different will disposition overrides substitution; express joint tenancy with survivorship sends predeceased co-owner’s share to survivors (KRS 394.400, 394.410(3)). |
| Alternative gifts and appointments | Will’s different disposition governs the deceased devisee’s gift (KRS 394.400). |
| Trust and nonprobate reach | Will construction rules apply as appropriate to trust terms and property (KRS 386B.1-100). |
Requirements one by one
Who qualifies and when
KRS 394.400 applies if a devisee or legatee died before the testator or was already dead when the will was made. Their issue who survive the testator take the gift as the named person would have taken it, unless the will makes or requires a different disposition. The section places the requirement on the deceased recipient's surviving issue, without stating an additional relationship to the testator.
Class gifts and survivorship
KRS 394.410(1) covers a devise to several people as a class or as tenants in common when some die before the testator and others survive. A dead devisee's descendants take that share; if the dead devisee has no descendants, it goes to the surviving devisees, unless the devisor directed otherwise. Subsection (2) says a gift to children embraces grandchildren when no children remain and no other construction gives the gift effect.
The outcome changes for a gift to joint tenants with right of survivorship. Under KRS 394.410(3), the surviving joint tenants take a co-owner's share when the co-owner dies before the testator. If all joint tenants die first, subsection (3) directs the property through subsection (1) as though the gift had been to tenants in common.
Failed gift and trust terms
Under KRS 394.500, an otherwise ineffective devise or bequest of real or personal property enters the will's residuary devise unless a contrary intention appears. KRS 386B.1-100 applies will-construction rules as appropriate to trust terms and trust property; that wording calls for reading the trust's actual terms before applying the will rule there.
What trips people up
A predeceased named recipient and a predeceased joint tenant with an express survivorship right can lead to different recipients under KRS 394.400 and 394.410(3). Check the form of the gift and any different disposition required by the will before assigning a substitute share.
Common questions
Does the beneficiary have to be the testator's relative? KRS 394.400 asks whether the deceased devisee or legatee left issue who survived the testator; its wording does not make the devisee's kinship to the testator a condition.
What if the will named someone who had already died? KRS 394.400 expressly covers a beneficiary who was dead when the will was made, subject to the surviving-issue and will-disposition conditions.
Statutes and sources
- KRS 394.400, 394.410, 394.500 and 386B.1-100. The source fields above contain verbatim official excerpts, URLs and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
What does Kentucky law mean for your facts?
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