Will Anti-Lapse and Substitute Gifts in Tennessee

Short answer Tennessee's substitute-gift rule can protect any devisee or legatee who dies before the testator or was already dead when the will was made, if that person leaves issue surviving the testator. It also covers a member of a class receiving an immediate gift and extends to a revocable living trust that becomes irrevocable at its settlor's death. A different disposition in the will or trust controls. (Tenn. Code Ann. § 32-3-105.)
State
Tennessee
Statute checked
October 4, 2026
Sources
5 statutes

At a glance

Instruments and gifts coveredWill devise or bequest; also a qualifying revocable living trust (§ 32-3-105(a)–(b)).
Which devisees qualifyAny devisee, legatee, or member of an immediate-gift class; no kinship test stated (§ 32-3-105(a)).
Death or failure triggerNamed person dies before testator or was dead when will was made; trust beneficiary predeceases settlor (§ 32-3-105(a)–(b)).
Descendant survival periodIssue must survive testator; 1997 ch. 426 § 16 deems a named devisee predeceased if survival is under 120 hours (§ 32-3-105(a)).
Who takes and howSurviving issue take the estate or interest the deceased person would have taken (§ 32-3-105(a)).
Class giftsA deceased member of a class receiving an immediate devise or bequest is covered (§ 32-3-105(a)).
Failed gift and residueFailed share of multiperson will or qualifying-trust residue goes proportionally to other residuary recipients, subject to § 32-3-105 (§ 32-3-112).
Contrary intent and survival wordsDifferent will disposition or trust agreement controls; 120-hour deeming yields to specified will survival language (§ 32-3-105; 1997 ch. 426 § 16).
Alternative gifts and appointmentsA different disposition made or required by the will controls substitution (§ 32-3-105(a)).
Trust and nonprobate reachRevocable living trust becoming irrevocable at settlor's death is expressly covered (§ 32-3-105(b)).

Requirements one by one

Who is covered and when

Under § 32-3-105(a), a deceased devisee or legatee can leave a substitute gift to issue who survive the testator. The provision also includes a person already dead when the will was made. It states no kinship condition between the deceased beneficiary and the testator. An immediate gift to a class includes a member who dies before the testator.

Survival and destination

Section 32-3-105(a) requires surviving issue to take the estate or interest the deceased person would have taken; it does not specify a division formula among those issue. The official 1997 public act, ch. 426, § 16, deems a named devisee who fails to survive the testator by 120 hours to have predeceased, subject to stated will-language exceptions. That deeming rule does not itself say that substitute issue must survive for 120 hours.

Failed residuary shares

Section 32-3-112 began in 2007 ch. 8, § 2. For a multiperson residue under a will or qualifying trust, an otherwise failed share passes to the other residuary recipients in proportion to their remaining interests. The 2012 amendment, ch. 886, § 8, expressly made this fallback subject to § 32-3-105 as well as to a different disposition in the will or trust agreement.

Living trusts

The 1997 addition to § 32-3-105(b) extends substitution to a revocable living trust that becomes irrevocable on its settlor's or grantor's death. Surviving issue of a beneficiary who predeceased the settlor or grantor take that beneficiary's trust interest unless the trust agreement provides otherwise.

What trips people up

A different disposition made or required by the will defeats the default in § 32-3-105(a). The trust rule likewise yields to the trust agreement. The 120-hour rule concerns the named devisee's deemed predecease; the anti-lapse text itself asks whether substitute issue survive the testator.

Common questions

Does the deceased beneficiary have to be related to the testator? Section 32-3-105(a) says “devisee or legatee” without a kinship condition; surviving issue of that person are the possible substitutes.

What if a residuary beneficiary dies? If § 32-3-105 does not supply a substitute and the will or trust does not direct another result, § 32-3-112 distributes that share proportionally to the other residuary recipients.

Statutes and sources

  • Tenn. Code Ann. §§ 32-3-105 and 32-3-112; 1997 Tenn. Pub. Acts ch. 426, §§ 16, 20; 2007 Tenn. Pub. Acts ch. 8, § 2; 2012 Tenn. Pub. Acts ch. 886, § 8. The source fields above contain verbatim excerpts, URLs, and access dates.

Source links

Every statute quoted above, linked, with the date we checked it.

Tenn. Code Ann. § 32-3-105(a) · accessed 2026-10-04
This page gives general information about statutory substitute-gift rules, not advice about a particular will or beneficiary. The instrument's words, other law, and the facts can affect the result. Check current official law and consult a licensed adviser before acting.

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