Will Anti-Lapse and Substitute Gifts in Texas
At a glance
| Instruments and gifts covered | Will devises under Estates Code ch. 255, subch. D; specific and residuary gifts addressed (§§ 255.151–.153). |
|---|---|
| Which devisees qualify | Devisee is a descendant of testator or of testator's parent (§ 255.153(a)). |
| Death or failure trigger | Devisee dead at will execution, fails to survive testator, or is treated as predeceased under ch. 121 or otherwise (§ 255.153(a)). |
| Descendant survival period | Substitute descendants must survive testator by 120 hours (§ 255.153(a)). |
| Who takes and how | Devisee's qualifying descendants take by nearest-degree shares and representation for deceased branches (§ 255.153(a)–(b)). |
| Class gifts | Would-be class member treated as devisee only if not dead before will execution (§ 255.154). |
| Failed gift and residue | Other failed nonresiduary gift enters residue; failed residuary share shifts to other residuary devisees; all-failed residue passes as intestate (§ 255.152(a)–(c)). |
| Contrary intent and survival words | Will may provide otherwise; 'my surviving children' and similar words prevent substitute-gift rule (§ 255.151). |
| Alternative gifts and appointments | §§ 255.151–.154 address devises and class gifts; no separate appointment or alternative-devise substitution stated there. |
| Trust and nonprobate reach | Will-devise subchapter; ordinary failed-gift fallback does not apply to charitable-trust devise unless will provides otherwise (§ 255.152(d)). |
Requirements one by one
Covered devisees and failures
Texas's substitute-gift rule reaches a devisee who is a descendant of the testator or a descendant of the testator's parent (Tex. Est. Code § 255.153(a)). It expressly covers someone already dead when the will is executed, someone who later fails to survive the testator, or someone treated as predeceased by Chapter 121 or another rule. The substitute descendants must survive the testator by 120 hours.
Who receives the substitute gift
Under § 255.153(b), the deceased devisee's share is divided among the nearest surviving descendants, adding a share for a deceased person in that same degree whose descendants survived the testator. That deceased person's share passes down by representation.
Class and residuary gifts
A person who would have taken under a class gift if alive is treated as a devisee under § 255.154, unless that person died before the will was executed. If no substitute gift applies, § 255.152(a) sends a failed nonresiduary gift into the residue; subsection (b) reallocates a failed residuary share among other residuary devisees, and subsection (c) supplies an intestacy fallback if all residuary devisees fail.
Contrary instructions in the will
Section 255.151 allows the will to provide otherwise. It specifically gives "to my surviving children" and "to such of my children as shall survive me" as language that prevents the statutory substitution under §§ 255.153–.154.
What trips people up
Death before will execution is covered for an individually named qualifying devisee (§ 255.153(a)), yet § 255.154 excludes someone who died before execution from its class-gift treatment. The ordinary failed-gift fallback does not apply to a devise to a charitable trust unless the will provides otherwise (§ 255.152(d)). The cited will-devise provisions state no separate rule for an alternative gift or a power of appointment; the wording of the instrument must be read without assuming the devise rule covers them.
Common questions
Does every deceased beneficiary's child take automatically? No. Section 255.153(a) requires the specified relationship to the testator and a substitute descendant who survives the testator by 120 hours; § 255.151 also permits a contrary will provision.
What happens if a specific gift fails without substitution? Under § 255.152(a), it becomes part of the residue unless a stated exception applies.
Does "my surviving children" still permit this substitute gift? Section 255.151 uses that phrase as an example of will language that prevents §§ 255.153–.154 from applying.
Statutes and sources
- Tex. Est. Code §§ 255.151–.154. The source fields above provide verbatim excerpts, official chapter section anchors and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
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