Will Anti-Lapse and Substitute Gifts in Oregon
At a glance
| Instruments and gifts covered | Property devised by will; separate trust chapter governs beneficiary rights subject to trust terms (ORS 112.395; 130.020(1)). |
|---|---|
| Which devisees qualify | Devisee related to testator by blood or adoption (ORS 112.395). |
| Death or failure trigger | Covered devisee dies before testator; class member’s death must follow will execution (ORS 112.395). |
| Descendant survival period | Devisee leaves lineal descendants; cited anti-lapse section gives no fixed hour period (ORS 112.395). |
| Who takes and how | Lineal descendants take deceased devisee’s property by representation (ORS 112.395). |
| Class gifts | Would-be class member treated as devisee only when death follows will execution (ORS 112.395). |
| Failed gift and residue | Other failed nonresiduary gift enters residue; failed multiperson residuary share passes proportionately to others (ORS 112.400). |
| Contrary intent and survival words | Will can provide otherwise for individual and qualifying class substitutions (ORS 112.395). |
| Alternative gifts and appointments | Will may provide otherwise; general residue alone does not exercise a power absent reference or other intent (ORS 112.395, 112.410). |
| Trust and nonprobate reach | Trust beneficiary rights are governed by Chapter 130 except as trust terms provide (ORS 130.020(1)). |
Requirements one by one
Which devisees and descendants qualify
Under ORS § 112.395, the devisee must be related to the testator by blood or adoption and die before the testator. The devisee's lineal descendants then take the devised property by representation, as the devisee would have taken it. The section does not add a fixed number of hours for these descendants.
Class gifts and other failed devises
The same ORS § 112.395 treats a would-be class member as a devisee only if the member died after the will was executed. This makes the execution date matter even though the person dies before the testator.
For a devise that remains failed, ORS § 112.400(1) sends a nonresiduary gift into the residue. Under subsection (2), an otherwise failed share of a residue left to multiple people passes to the other residuary devisees in proportion to their interests. Both rules are expressly subject to § 112.395.
Appointments and trust terms
ORS § 112.410 states that a general residuary clause does not itself exercise a testator's power of appointment; it requires a specific reference to the power or another indication of intent to include the property. For trust beneficiary rights, ORS § 130.020(1) makes Chapter 130 govern except as the trust terms provide.
What trips people up
The class-gift sentence in § 112.395 has an after-execution condition that its individual-devisee sentence does not state. The will can provide otherwise for both. The document's actual wording therefore matters before a substitute share is assigned.
Common questions
Does an adopted relative count? Yes. Section 112.395 expressly includes a devisee related to the testator by adoption.
Does a lapsed residuary share always pass by intestacy? Section 112.400(2) instead sends a failed share in a multiperson residue proportionately to the other residuary devisees, subject to § 112.395.
Statutes and sources
- ORS §§ 112.395, 112.400, 112.410 and 130.020. The source fields above contain verbatim official excerpts, chapter URLs and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
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