Will Anti-Lapse and Substitute Gifts in Tennessee
At a glance
| Instruments and gifts covered | Will devise or bequest; also a qualifying revocable living trust (§ 32-3-105(a)–(b)). |
|---|---|
| Which devisees qualify | Any devisee, legatee, or member of an immediate-gift class; no kinship test stated (§ 32-3-105(a)). |
| Death or failure trigger | Named person dies before testator or was dead when will was made; trust beneficiary predeceases settlor (§ 32-3-105(a)–(b)). |
| Descendant survival period | Issue 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 how | Surviving issue take the estate or interest the deceased person would have taken (§ 32-3-105(a)). |
| Class gifts | A deceased member of a class receiving an immediate devise or bequest is covered (§ 32-3-105(a)). |
| Failed gift and residue | Failed 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 words | Different 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 appointments | A different disposition made or required by the will controls substitution (§ 32-3-105(a)). |
| Trust and nonprobate reach | Revocable 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.
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