Will Anti-Lapse and Substitute Gifts in Massachusetts

At a glance

Requirements one by one

Covered devisee and failure

Section 2-603 reaches a devisee who is the testator's grandparent or a lineal descendant of a grandparent. It applies even if that person died before the testator executed the will. A devisee who later fails to survive, or is treated as having predeceased the testator, is also covered. The deceased devisee's issue must survive the testator; the section sets no hour count. Under § 2-702(a), a person whose survival cannot be established is deemed to have predeceased an event, subject to express instrument-language exceptions in § 2-702(d)(1).

Shares, classes, and residue

Under § 2-603, issue in the same degree of kinship to the deceased devisee take equally. For unequal degrees, more remote issue take per capita at each generation. A potential class member counts as a devisee whether death came before or after execution. Under § 2-604(a), an otherwise failed nonresiduary devise enters the residue; an otherwise failed share of a residue devised to multiple people passes to the other residuary devisees proportionally.

Separate trust rule

Under § 1-201(11), the trust or trustee, rather than its beneficiaries, is the devisee when a will devises to a trust. For a beneficiary's future interest under a trust, § 2-707(a)(1) supplies a separate substitute gift to surviving descendants when the instrument is silent on survivorship and the beneficiary fails to survive the distribution date.

What trips people up

Under § 2-601, these will-construction rules yield to a contrary intention shown by the will's terms. A named backup recipient or survival condition therefore requires reading the actual will before applying the statutory default.

Common questions

What if a class member died before the will was signed? Section 2-603 expressly treats that person as a devisee for substitution if the person would have been a devisee under the class gift by surviving the testator.

What if the failed gift was part of the residue? Subject to substitution under § 2-603, § 2-604(b) sends that share to the other residuary devisees in proportion to their remaining interests.

Statutes and sources

• Mass. Gen. Laws ch. 190B, §§ 1-201, 2-601, 2-603, 2-604, 2-702, and 2-707. The source fields above contain verbatim official excerpts, section URLs, and access dates.