Will Anti-Lapse and Substitute Gifts in Rhode Island

At a glance

Requirements one by one

The beneficiary and the gift

§ 33-6-19 uses “any person” and does not limit protection to relatives. It covers a will's devise or bequest of real or personal estate, but only an estate or interest not determinable at or before that beneficiary's death. The beneficiary must die while the testator is alive, leaving issue who are living at the testator's death. A separate § 33-6-11 preserves certain estates tail when the deceased devisee leaves inheritable issue living at the testator's death.

Who takes, and when

The surviving issue take the devise or bequest in the proportions they would receive from the original beneficiary's estate if the beneficiary died intestate immediately after the testator (§ 33-6-19). The section asks whether issue are living at the testator's death; it gives no separate fixed-hour survival period for this will gift. § 33-1-13's 120-hour rule expressly lists homestead allowance, exempt property, and intestate succession, so it should not be read as an automatic will-gift period.

Failed gifts and trust gifts

Under § 33-6-20, a failed real-estate devise enters the residuary devise, if any, in the circumstances the section names and absent contrary will intent. If a named co-residuary devisee or legatee dies before the testator without issue living at the testator's death, the others named in the same residuary clause take the failed share in proportion to their shares. That rule applies whether they are described as a class or not.

§ 33-6-33 permits a will gift or appointment to a trustee of an identified existing written trust. Unless the will provides otherwise, the property becomes trust principal governed by that trust's terms. If the trust fully terminates before the testator dies, the gift lapses and the appointment fails unless the will directs otherwise. Section 33-6-19 does not itself state a separate substitute-gift rule for a trust beneficiary or nonprobate designation.

What trips people up

§ 33-6-19 requires issue living at the testator's death and measures their proportions as though the deceased beneficiary lived until immediately after that death. Those are different steps; the hypothetical later death determines allocation, not who satisfies the living-issue condition.

Common questions

Must the deceased beneficiary be related to the testator? Section 33-6-19 says “any person,” subject to its gift, death, issue, and contrary-intent conditions.

Does the statute preserve a gift that ended when the beneficiary died? Section 33-6-19 excludes an estate or interest determinable at or before that death.

Can the will direct another result? Yes. Section 33-6-19 yields when a contrary intention appears in the will; § 33-6-20 has its own contrary-intent condition for failed real-estate devises.

Statutes and sources

• R.I. Gen. Laws §§ 33-6-11, 33-6-19, 33-6-20, 33-6-33 and 33-1-13. Verbatim official excerpts, section URLs, and access dates appear in the source fields above.