Will Anti-Lapse and Substitute Gifts in Minnesota
At a glance
| Instruments and gifts covered | Will devise; will construction rules apply to trust terms and property as appropriate (§§ 524.2-601, 501C.0112). |
|---|---|
| Which devisees qualify | Devisee must be testator's grandparent or lineal descendant of a grandparent (§ 524.2-603, subd. 1). |
| Death or failure trigger | Dead when will executed, fails to survive testator, or treated as predeceased (§ 524.2-603, subd. 1). |
| Descendant survival period | Substitute issue must survive testator by 120 hours (§ 524.2-603, subd. 1). |
| Who takes and how | Issue of same degree take equally; unequal degrees take by representation (§ 524.2-603, subd. 1). |
| Class gifts | Would-be class member counts as devisee whether death preceded or followed will execution (§ 524.2-603, subd. 1). |
| Failed gift and residue | Other failed nonresiduary gift enters residue; failed multiperson residuary share goes proportionately to other residuary devisees (§ 524.2-604). |
| Contrary intent and survival words | Will construction yields to contrary intent; “if he or she survives me” and “my surviving children” suffice to defeat § 524.2-603 (§§ 524.2-601, -603, subd. 2). |
| Alternative gifts and appointments | Contrary will terms control; § 524.2-603 states no separate appointment or alternative-gift priority rule. |
| Trust and nonprobate reach | Will rules apply to trust terms as appropriate; revocable-trust beneficiary has a separate 120-hour deeming rule (§§ 501C.0112, 524.2-702(a)). |
Requirements one by one
Covered devisee and timing
Under § 524.2-603, subd. 1, a deceased devisee must be the testator's grandparent or a lineal descendant of a grandparent. The provision covers death before execution, failure to survive the testator, and a devisee treated as having predeceased. A person who would have belonged to a gift class on survival counts as a devisee whether death came before or after the will was signed.
Issue and division
The substitute issue must outlive the testator by 120 hours under § 524.2-603, subd. 1. If all surviving issue have the same degree of kinship to the deceased devisee, they divide equally. If their degrees differ, more remote issue take by representation.
Other failed gifts
Under § 524.2-604(a), a failed nonresiduary devise enters the residue unless § 524.2-603 substitutes issue. Under § 524.2-604(b), a failed share of a residue left to two or more people goes to the other residuary devisees in proportion to their remaining interests, again subject to substitution.
What trips people up
Under § 524.2-603, subd. 2, the statute expressly treats “if he or she survives me” and “my surviving children” as sufficient contrary-intent indications. A will's actual survival wording therefore matters even when the deceased devisee otherwise fits the family relationship. Section 524.2-601 makes will construction rules subject to a contrary intention found in the will.
Under § 501C.0112, the law applies will-construction rules to a trust as appropriate. Under § 524.2-702(a), the law separately deems a revocable-trust beneficiary who fails to survive the grantor by 120 hours to have predeceased; that deeming rule does not itself identify the substitute recipient of a trust gift.
Common questions
Does the rule cover someone who died before the will was signed? Yes. Section 524.2-603, subd. 1, expressly includes that timing for a qualifying devisee.
Must all surviving issue be in the same generation? No. Section 524.2-603, subd. 1, specifies equal shares at the same degree and representation when the degrees differ.
Statutes and sources
- Minn. Stat. §§ 524.2-601, 524.2-603, 524.2-604, 524.2-702 and 501C.0112. 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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