Will Anti-Lapse and Substitute Gifts in Louisiana
At a glance
| Instruments and gifts covered | Testamentary legacy, joint or otherwise; separate rule for testamentary trust principal interest (arts. 1593; R.S. 9:1809). |
|---|---|
| Which devisees qualify | Legatee: testator's child, sibling, or descendant of either; trust principal beneficiary: settlor's descendant, sibling, or sibling's descendant (art. 1593; R.S. 9:1809). |
| Death or failure trigger | Legacy lapses for predecease, incapacity, unfulfilled suspensive condition, unworthiness, renunciation or invalidity; art. 1593 excludes stated invalidity/nullity grounds (arts. 1589, 1593). |
| Descendant survival period | Will substitute descendants must exist at testator's death; trust rule requires principal beneficiary not to survive settlor (art. 1593; R.S. 9:1809). |
| Who takes and how | Qualifying legatee's descendants in existence at death take by roots; trust substitutes are descendants by roots (art. 1593; R.S. 9:1809). |
| Class gifts | Qualifying joint legatee remains covered; code distinguishes joint and separate multi-person legacies (arts. 1588, 1592–1593). |
| Failed gift and residue | Uncovered lapse follows testament, then successor under testament, joint colegatees, universal legatees, and finally intestacy (arts. 1590–1592, 1595–1596). |
| Contrary intent and survival words | Testamentary direction governs accretion first; testamentary trust may provide otherwise (art. 1590; R.S. 9:1809). |
| Alternative gifts and appointments | Governing testamentary provision takes priority over default accretion (art. 1590). |
| Trust and nonprobate reach | Separate substitute rule for named principal beneficiary of testamentary trust; it yields to contrary trust terms (R.S. 9:1809). |
Requirements one by one
When a legacy lapses
Under La. Civ. Code art. 1589, a legacy can lapse when the legatee dies before the testator, cannot receive at death, dies before a suspensive condition is fulfilled, is unworthy, renounces, or when the gift is invalid or null. Article 1593 applies only to the extent the qualifying legatee's interest lapses. It expressly excludes a legacy declared invalid or null for fraud, duress, or undue influence.
Who receives a substitute gift
Article 1593 protects a legatee who was the testator's child or sibling, or a descendant of a child or sibling, including a joint legatee. The substitute gift goes to that person's descendants by roots who existed when the testator died. For example, when a testator's child dies first leaving two children alive at the testator's death, those children are the substitute line for the child's lapsed legacy. Article 1588 calls a multi-person legacy joint when the testator does not assign shares, unless the testament expressly designates it otherwise; article 1592's ratable joint-legatee rule yields to article 1593.
Other lapsed gifts
Under article 1590, the testament's own governing direction controls accretion. For a lapsed particular or general legacy, article 1591 directs the property to the successor who would have received it under the testament if that legacy had not been made. Article 1595 sends remaining lapsed legacies ratably to universal legatees, including a residue or balance gift treated as universal under its second sentence. Article 1596 sends any still undisposed portion through intestacy.
Testamentary trusts
La. R.S. § 9:1809 separately protects a named principal beneficiary of a testamentary trust who was the settlor's descendant, sibling, or descendant of a sibling and did not survive the settlor. That person's descendants by roots become principal beneficiaries in their place, unless the trust instrument provides otherwise. The trust section's relationship test differs from the will-legacy test in article 1593.
What trips people up
A lapse and a substitute gift are separate questions. Article 1589 lists several lapse events; article 1593 then specifies the protected family relationship and excludes the stated invalidity and nullity grounds. A will's own replacement direction is read first under article 1590.
Common questions
Does a sibling's child qualify? Yes. Article 1593 includes descendants of the testator's sibling among protected legatees, and sends a qualifying lapsed interest to that legatee's descendants by roots.
Does a joint gift automatically go to the other named person? Article 1592 generally provides ratable accretion among other joint legatees, but it expressly makes that rule subject to the next article's qualifying-descendant exception.
Statutes and sources
- La. Civ. Code arts. 1588–1593, 1595–1596; La. R.S. § 9:1809. 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.
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