Will Anti-Lapse and Substitute Gifts in New York
At a glance
| Instruments and gifts covered | Testamentary dispositions, including a future estate unless conditioned on surviving testator (§ 3-3.3(a)(2)). |
|---|---|
| Which devisees qualify | Beneficiary must be testator's issue or brother or sister (§ 3-3.3(a)(2)). |
| Death or failure trigger | Beneficiary dies during testator's lifetime; survival-conditioned future estate excluded (§ 3-3.3(a)(2)). |
| Descendant survival period | Beneficiary's issue must survive testator; § 3-3.3 states no fixed-hour period. |
| Who takes and how | Deceased beneficiary's issue who survive testator take by representation (§ 3-3.3(a)(2)). |
| Class gifts | Covered 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 residue | If § 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 words | Will may provide otherwise; future estate expressly conditioned on surviving testator falls outside substitution (§ 3-3.3(a)). |
| Alternative gifts and appointments | An 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.
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