Will Anti-Lapse and Substitute Gifts in New York

Short answer Unless the will provides otherwise, a gift to the testator's issue or sibling does not lapse if that beneficiary dies during the testator's lifetime and leaves issue who survive the testator. The surviving issue take by representation. The rule also covers most class gifts, but excludes a class ancestor who died before the will was executed. (N.Y. EPTL § 3-3.3.)
State
New York
Statute checked
October 4, 2026
Sources
4 statutes

At a glance

Instruments and gifts coveredTestamentary dispositions, including a future estate unless conditioned on surviving testator (§ 3-3.3(a)(2)).
Which devisees qualifyBeneficiary must be testator's issue or brother or sister (§ 3-3.3(a)(2)).
Death or failure triggerBeneficiary dies during testator's lifetime; survival-conditioned future estate excluded (§ 3-3.3(a)(2)).
Descendant survival periodBeneficiary's issue must survive testator; § 3-3.3 states no fixed-hour period.
Who takes and howDeceased beneficiary's issue who survive testator take by representation (§ 3-3.3(a)(2)).
Class giftsCovered except gifts to 'issue,' 'descendents,' or similar class; no benefit for issue of ancestor dead before will execution (§ 3-3.3(a)(3)).
Failed gift and residueIf § 3-3.3 and a will alternative do not apply, failed share of multi-person residue passes ratably to remaining residuary beneficiaries (§ 3-3.4).
Contrary intent and survival wordsWill may provide otherwise; future estate expressly conditioned on surviving testator falls outside substitution (§ 3-3.3(a)).
Alternative gifts and appointmentsAn alternative will disposition supersedes § 3-3.4's residuary fallback; § 3-3.3 speaks of testamentary dispositions.
Trust and nonprobate reach§ 3-3.3 addresses testamentary dispositions; these cited provisions do not settle separate trust or nonprobate gifts.

Requirements one by one

Covered gifts and relatives

N.Y. EPTL § 3-3.3(a)(1) and (2) protect a testamentary disposition to the testator's issue or brother or sister when that beneficiary dies during the testator's lifetime, whether the will was executed before or after September 1, 1992. The rule expressly includes a future estate, except one subject to a condition precedent that the beneficiary survive the testator. The deceased beneficiary must leave issue who survive the testator; they take by representation.

Class gifts

Section 3-3.3(a)(3) treats a covered class gift as though it named each beneficiary individually, but excludes a disposition to “issue,” “descendents,” or a similarly described class. It also withholds the substitute benefit from the surviving issue of a class ancestor who died before the will was executed.

Failed residuary shares

When a will gives the residue to two or more beneficiaries and part is ineffective at the testator's death, § 3-3.4 applies only if § 3-3.3 supplies no substitute and the will makes no alternative disposition. It gives that part to the remaining residuary beneficiaries in proportion to their existing shares of the remaining residue.

What trips people up

For a class gift, the date the ancestor died matters: § 3-3.3(a)(3) excludes a substitute for one who died before execution, even though § 3-3.3(a)(2) covers a qualifying individually named beneficiary who died during the testator's lifetime. The will can provide otherwise under § 3-3.3(a), and an express survival condition on a future estate is an exclusion in the statutory text.

Common questions

Does the deceased beneficiary's sibling take automatically? Section 3-3.3(a)(2) instead vests the gift in that beneficiary's issue who survive the testator, by representation.

What if one of several residuary shares fails without a statutory substitute? Section 3-3.4 sends that share ratably to the other residuary beneficiaries if the will made no alternative disposition.

Statutes and sources

  • N.Y. EPTL §§ 3-3.3 and 3-3.4. The source fields above provide verbatim excerpts, official section URLs and access dates.

Source links

Every statute quoted above, linked, with the date we checked it.

N.Y. EPTL § 3-3.3(a)(1) · accessed 2026-10-04
N.Y. EPTL § 3-3.3(a)(2) · accessed 2026-10-04
N.Y. EPTL § 3-3.3(a)(3) · accessed 2026-10-04
N.Y. EPTL § 3-3.4 · accessed 2026-10-04
This page gives general information about statutory substitute-gift rules, not advice about a particular will or beneficiary. The instrument's words, other law, and the facts can affect the result. Check current official law and consult a licensed adviser before acting.

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