Will Anti-Lapse and Substitute Gifts in Mississippi
At a glance
| Instruments and gifts covered | Estate of any kind devised or bequeathed by a will (§ 91-5-7). |
|---|---|
| Which devisees qualify | Devisee or legatee must be the testator's child or other descendant (§ 91-5-7). |
| Death or failure trigger | Covered beneficiary dies during the testator's lifetime, testate or intestate (§ 91-5-7). |
| Descendant survival period | Beneficiary's child or descendant of a child must survive the testator; no stated hour count (§ 91-5-7). |
| Who takes and how | Surviving children or descendants take as if beneficiary survived testator and died intestate (§ 91-5-7). |
| Class gifts | A child or descendant named in a will gift follows the same § 91-5-7 kinship and survival conditions. |
| Failed gift and residue | Covered devise or legacy does not lapse; § 91-5-7 provides the substitute takers, including for a covered share. |
| Contrary intent and survival words | Section 91-5-7's statutory conditions govern a covered gift; read the will's actual gift terms. |
| Alternative gifts and appointments | Section 91-5-7 addresses a will devise or legacy to the covered beneficiary. |
| Trust and nonprobate reach | Will-construction rules apply to trust terms and disposition as appropriate (§ 91-8-112); no automatic trust outcome stated. |
Requirements one by one
Who qualifies and who takes
Under § 91-5-7, the deceased devisee or legatee must be a child or other descendant of the testator. The beneficiary must die during the testator's lifetime, leaving a child or a descendant of a child who survives the testator. The provision does not attach a fixed number of survival hours.
The surviving child or descendants take the devised or bequeathed estate as if the beneficiary had survived the testator and then died intestate. That statutory measure matters when several generations survive; the provision does not simply say to divide the gift equally among every descendant.
Trust construction
Under § 91-8-112, rules of construction governing wills also apply as appropriate to trust terms and trust-property dispositions. That wording calls for a separate trust analysis; it does not itself determine who takes a particular trust interest.
What trips people up
The statute requires kinship between the named beneficiary and the testator. A gift to a friend, sibling, or niece or nephew does not meet § 91-5-7 merely because that beneficiary left descendants. It also requires a qualifying descendant who survives the testator.
Common questions
Does it matter whether the beneficiary made a will? No for § 91-5-7's trigger: the provision expressly covers a beneficiary who dies testate or intestate. It still measures the substitute recipients as if that beneficiary had survived the testator and died intestate.
Does a child who dies after the testator qualify for this substitution? The section applies when the beneficiary dies during the testator's lifetime. A later death is outside that stated trigger.
Statutes and sources
- Miss. Code Ann. §§ 91-5-7 and 91-8-112. The source fields above contain verbatim statutory excerpts, source URLs, and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
What does Mississippi law mean for your facts?
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