Will Anti-Lapse and Substitute Gifts in New Jersey
At a glance
| Instruments and gifts covered | Will devises; construction rules also reach trusts and other governing instruments (§§ 3B:3-33.1, 3B:3-35). |
|---|---|
| Which devisees qualify | Decedent's grandparent, stepchild, or lineal descendant of a grandparent; stepchild includes spouse's child who is not decedent's child (§ 3B:3-35). |
| Death or failure trigger | Devisee dead when instrument executed, fails to survive decedent, or is treated as predeceased (§ 3B:3-35). |
| Descendant survival period | Substitute descendants must survive decedent by 120 hours (§ 3B:3-35). |
| Who takes and how | Surviving descendants take deceased devisee's place by representation (§ 3B:3-35). |
| Class gifts | Person who would have been class devisee if alive is covered whether death preceded or followed execution (§ 3B:3-35). |
| Failed gift and residue | Failed nonresiduary devise enters residue; failed multiperson residuary share goes to remaining devisees proportionally; undisposed estate passes by intestacy (§§ 3B:3-36, 3B:5-2(a)). |
| Contrary intent and survival words | Probable contrary intent shown by instrument and circumstances can override; § 3B:3-35 supplies no survivorship-word example (§ 3B:3-33.1). |
| Alternative gifts and appointments | No express alternative-gift or appointment priority in § 3B:3-35; contrary-intent construction remains (§§ 3B:3-33.1, 3B:3-35). |
| Trust and nonprobate reach | Construction rule expressly treats trusts and other governing instruments as wills and their beneficiaries as devisees for this rule (§ 3B:3-33.1(b)). |
Requirements one by one
Covered recipients and survival
Under N.J.S. § 3B:3-35, the deceased devisee must have been the decedent's grandparent, stepchild, or lineal descendant of a grandparent. A stepchild is the child of the decedent's surviving, deceased, or former spouse who is not the decedent's child. The devisee may have died before the instrument was executed, failed to survive the decedent, or been treated as having died first. Descendants who survive the decedent by 120 hours replace the devisee by representation.
Class and failed gifts
Section 3B:3-35 treats a person who would have been a class devisee if alive as a devisee whether death occurred before or after execution. Subject to substitution, § 3B:3-36(a) sends a failed nonresiduary devise into the residue; § 3B:3-36(b) sends a failed share of a multiperson residue to the remaining residuary devisees in proportion to their shares, absent contrary will intent. Under § 3B:5-2(a), estate property not effectively disposed of by will passes by intestate succession.
Trusts and other instruments
Section 3B:3-33.1(b) expressly applies the construction rules to trusts and other governing instruments. For these rules, a settlor or creator stands in for the testator, a trust or other instrument for a will, and a beneficiary for a devisee. This matters because § 3B:3-35 itself refers to a “governing instrument.”
What trips people up
Under § 3B:3-33.1(a)–(b), the testator's, settlor's, or creator's probable contrary intention, as indicated by the instrument and relevant circumstances, controls over the construction rule. Section 3B:3-35 gives no categorical answer for a particular survivorship phrase or alternative gift.
Common questions
Can a stepchild's descendants substitute? Yes, if the stepchild meets § 3B:3-35's definition and the descendants satisfy its survival requirement.
Does death before the will was signed prevent substitution? No. Section 3B:3-35 expressly includes a devisee already dead when the governing instrument was executed.
Statutes and sources
- N.J.S. §§ 3B:3-33.1, 3B:3-35, 3B:3-36, and 3B:5-2. The source fields above contain verbatim excerpts from the current official compilation, URLs, and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
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