Will Anti-Lapse and Substitute Gifts in Michigan

At a glance

Requirements one by one

Covered devisees and descendants

Under Mich. Comp. Laws § 700.2603(1), the deceased devisee must be a grandparent, grandparent's descendant, or stepchild of the testator or the donor of a power exercised by the will. If the devisee leaves surviving descendants, § 700.2603(1)(a) gives them the share the devisee would have received, by representation. Under § 700.2602(1), the will-construction rules are subject to a finding of contrary intention.

Class gifts and failed gifts

Section 700.2603(1)(b) creates substitute branches for eligible deceased class members, but excludes classes described as “issue,” “descendants,” “heirs,” “family,” and the other listed kinship terms. A living class member retains the share that member would have taken if the others had survived. Subject to substitution, § 700.2604(1) moves a failed nonresiduary gift into the residue; § 700.2604(2) divides a failed share of a multiperson residue among the other residuary devisees proportionally. Under § 700.2101(1), property that a will does not effectively dispose of passes by intestate succession.

Survival and alternative gifts

Under § 700.2702(1), a person who cannot be shown by clear and convincing evidence to have survived another's death by 120 hours is ordinarily deemed to have died first. Section 700.2702(4) supplies exceptions, including operative simultaneous-death language or a different express survival period. Under § 700.2603(1)(d), an alternative devise supersedes the substitute only when an expressly designated alternative devisee can take. If competing substitute gifts remain, § 700.2603(2) gives priority to a younger-generation substitute gift as defined there.

Trust boundary

Under § 700.2714(1)(a), a future interest under a trust is contingent on survival of the distribution date and, for a qualifying deceased beneficiary, a substitute gift passes to surviving descendants. Its exception for an expressly designated alternative future-interest beneficiary differs from simply naming an alternative. Section 700.2714(2) excludes an interest if its beneficiary died or irrevocably transferred it before April 1, 2000.

What trips people up

Under § 700.2603(1)(c), “if he survives me” and “my surviving children” alone are insufficient to show contrary intent. Under § 700.2603(1)(e), an appointee's descendant can substitute even when that descendant is outside the power's objects, unless the language creating the power expressly excludes substitution.

Common questions

Does naming a backup beneficiary always defeat the substitute gift? No. Section 700.2603(1)(d) requires an expressly designated alternative devisee who is entitled to take.

Do the deceased devisee's descendants split the share equally? Section 700.2603(1)(a) says they take by representation; the share depends on the descendant branches.

Statutes and sources

• Mich. Comp. Laws §§ 700.2602–700.2604, 700.2101, 700.2702, and 700.2714. The source fields above contain verbatim official excerpts, URLs, and access dates.