Will Anti-Lapse and Substitute Gifts in South Carolina

At a glance

Requirements one by one

Who qualifies under a will

Under § 62-2-603(A), a deceased devisee may be the testator's great-grandparent or a lineal descendant of a great-grandparent. Death before the will was executed, failure to survive the testator, and a deemed predecease are covered. Under § 62-2-603(B), a would-be class member counts whether death occurred before or after execution.

Substitute issue and other failed gifts

Under § 62-2-603(A), the statute gives the gift to issue who survive the testator. Issue at the same degree of kinship to the deceased devisee take equally; more remote issue take by representation. The section names no fixed survival hour count for these issue. Under § 62-2-104(1), the code states its separate 120-hour rule for intestacy, homestead allowance and exempt property, so that clause does not itself add an hour test to this will gift.

Under § 62-2-604(A), an otherwise failed nonresiduary devise enters the residue. An otherwise failed share of a residue left to multiple people passes to the other residuary devisees in proportion to their interests, subject to § 62-2-603.

Revocable trusts

The separate § 62-7-606(A) gives surviving issue of a qualifying revocable-trust beneficiary a substitute gift after the beneficiary's death before the settlor. It uses the settlor's great-grandparent relationship test, covers class members, and divides among issue by equal degree or representation. Under § 62-7-606(B) and (C), other failed trust property enters the trust residue, and a failed multiperson residuary share goes proportionately to the others.

What trips people up

Under § 62-2-603(C), words such as “if he survives me” or “my surviving children” are sufficient contrary-intent indicators absent additional evidence. Under § 62-2-601(A), the code likewise makes construction rules yield to the will's indicated contrary intention. The trust provision yields when the trust expressly provides otherwise (§ 62-7-606(A)).

Common questions

Does a beneficiary have to be a close relative? The quoted rule extends to the testator's great-grandparent and lineal descendants of a great-grandparent; it does not limit protection to the testator's own descendants.

What if the deceased person was in a class gift? Sections 62-2-603(B) and 62-7-606(A) expressly count a would-be will or revocable-trust class member who died before or after the instrument was executed.

Statutes and sources

• S.C. Code §§ 62-2-104, 62-2-601, 62-2-603, 62-2-604 and 62-7-606. The source fields above contain verbatim official excerpts, chapter URLs and access dates.