Will Anti-Lapse and Substitute Gifts in Ohio

At a glance

Requirements one by one

Covered relatives and survival

Under Ohio Rev. Code § 2107.52(B)(2)(a), the deceased devisee must be a grandparent, a grandparent's descendant, or a stepchild of the testator or the donor of a power exercised by will. Under § 2107.52(A)(2), distinct class-gift and intestacy tests establish the grandparent's-descendant relationship. The substitute descendants take per stirpes. Under § 2107.52(A)(7), “surviving” requires at least 120 hours after the testator's death. The devisee definition includes someone already dead when the testator signed the will (§ 2107.52(A)(4)).

Class gifts

Under § 2107.52(B)(2)(b), the qualifying deceased member's surviving descendants substitute, but gifts to “issue,” “descendants,” “heirs,” “family,” and similar multigeneration classes are excluded. Each surviving member keeps the share that member would have taken if all members had survived; the substitute branch takes its ancestor's share per stirpes.

Failed gifts and appointments

Subject to substitution, § 2107.52(D)(1)–(3) moves a failed nonresiduary devise into the residue, gives a failed share of a multiperson residue to the remaining residuary devisees proportionally, and sends a wholly failed residue by intestacy. Under § 2107.52(A)(3), devises include alternatives. Under § 2107.52(C)(4), an appointee's descendant can substitute even if not an object of the power, unless the creating language expressly excludes that substitution.

Trust boundary

Under § 2107.52(E), this will rule applies to outright devises and appointments. Devises and appointments in trust follow § 5808.19. Under § 5808.19(B)(1)(b) and (2), a covered future trust beneficiary and any substitute descendants must survive the distribution date by 120 hours, absent contrary intent in the trust instrument. OH HB 446 would expand that section's beneficiary definition; it has passed the House and remains before the Senate.

What trips people up

Ohio treats survivorship words differently: under § 2107.52(C)(1)–(2), “my surviving children” alone ordinarily leaves substitution available, while “to my child, if my child survives me” ordinarily negates it. For a residuary clause to show contrary intent, § 2107.52(C)(3) requires a specific direction sending failed nonresiduary gifts to the residue.

Common questions

Does a stepchild qualify? Yes, a stepchild of the testator or appointive donor is expressly within § 2107.52(B)(2)'s relationship test.

Can an appointee's descendant take if the power did not name them? Section 2107.52(C)(4) permits that substitution unless the creating language expressly excludes it.

Statutes and sources

• Ohio Rev. Code §§ 2107.52 and 5808.19. The source fields above provide verbatim excerpts, official enrolled-act URLs and access dates.