Will Anti-Lapse and Substitute Gifts in Maryland
At a glance
| Instruments and gifts covered | Will legacies to a named or described legatee, or a member of a gift class (§ 4-403(a)). |
|---|---|
| Which devisees qualify | Any qualifying legatee; § 4-403(a) states no kinship condition. |
| Death or failure trigger | Legatee dies after will execution but before testator; a nonspouse legatee surviving under 30 full days is deemed to predecease (§§ 4-401, 4-403(a)). |
| Descendant survival period | § 4-403 directs the gift to the legatee's testate or intestate takers, without an express descendant-survival period; § 4-401 has a separate 30-day rule for the original legatee. |
| Who takes and how | Those who would have taken if the legatee died owning the property, testate or intestate; direct distribution from testator's estate (§ 4-403(b)). |
| Class gifts | A deceased member of a class favored by a legacy is expressly covered (§ 4-403(a)(3)). |
| Failed gift and residue | Other void or inoperative legacy passes as though it had not existed; failed share among multiple residuary legatees augments the others proportionately (§ 4-404). |
| Contrary intent and survival words | Express contrary intent in will overrides §§ 4-403 and 4-404; § 4-401 states two exceptions to its 30-day deemed-predecease rule. |
| Alternative gifts and appointments | An express contrary will direction controls; § 4-403 addresses legacies without resolving a separate appointment (§ 4-403(a)). |
| Trust and nonprobate reach | § 4-403 addresses legacies in a will; it does not decide gifts under a separate trust or beneficiary designation. |
Requirements one by one
A deceased legatee's gift
Under § 4-403(a), the rule covers a legatee who dies after the will is executed but before the testator. It includes a specifically named person, someone otherwise identified in the will, and a member of a class receiving a legacy. The provision states no kinship test between the legatee and testator. It does not itself cover a person who died before will execution.
Who takes the preserved legacy
Under § 4-403(b), the statute directs the property straight from the testator's estate to the people who would have taken it had the deceased legatee died owning it, whether under that legatee's will or by intestacy. The statute therefore does not automatically substitute only the legatee's descendants or prescribe a per-stirpes split. Under § 4-403(c), that legatee's creditors have no interest in the property.
Other failed gifts
When § 4-403 does not preserve a void or inoperative legacy, § 4-404(a) distributes the property as if the failed legacy had not existed. Under § 4-404(b), a failed share of a residue given to multiple legatees proportionately augments the other residuary legacies.
What trips people up
Section 4-401 deems a nonspouse legatee who fails to outlive the testator by 30 full days to have predeceased the testator. The will may instead expressly presume survival or state a different survival period that the legatee satisfies. That deemed-predecease provision is separate from § 4-403's requirement that the legatee actually die after will execution and before the testator. Express contrary intent in the will also overrides the default rules in §§ 4-403 and 4-404.
Common questions
Must the deceased legatee be a relative? Section 4-403(a) lists ways a legatee may be identified and gives no kinship condition.
Can the deceased legatee's own will affect the destination? Yes. Section 4-403(b) uses the people who would have taken if that legatee had died owning the property, either testate or intestate.
Statutes and sources
- Md. Code, Estates and Trusts §§ 4-401, 4-403 and 4-404. The source fields above contain verbatim official excerpts, section URLs and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
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