Will Anti-Lapse and Substitute Gifts in Utah
At a glance
| Instruments and gifts covered | Will devise, including class gift, alternative devise or testamentary appointment; trust rules apply as appropriate (§§ 75-2-603(1), 75B-2-111). |
|---|---|
| Which devisees qualify | Devisee: grandparent, grandparent’s descendant or stepchild of testator or donor of exercised power (§ 75-2-603(2)). |
| Death or failure trigger | Fails to survive testator, including devisee already dead when will signed or deemed predeceased (§ 75-2-603(1)(d), (f), (2)). |
| Descendant survival period | Surviving descendants ordinarily must outlive testator by 120 hours, subject to § 75-2-702(4) exceptions (§§ 75-2-603(1)(f), 75-2-702). |
| Who takes and how | Surviving descendants take the deceased devisee’s share per capita at each generation (§ 75-2-603(2)(a)–(b)). |
| Class gifts | Substitution for qualifying class member; class descriptions like “issue,” “heirs” and “family” excluded (§ 75-2-603(2)(b)). |
| Failed gift and residue | Other failed nonresiduary devise enters residue; failed multiperson residuary share passes proportionately (§ 75-2-604). |
| Contrary intent and survival words | “If he survives me” and “my surviving children” indicate contrary intent absent clear and convincing evidence (§ 75-2-603(2)(c)). |
| Alternative gifts and appointments | Expressly named alternative taker supersedes substitution only if entitled; appointment descendants may substitute unless power expressly excludes (§ 75-2-603(2)(d)–(e)). |
| Trust and nonprobate reach | Will-construction rules apply to trust terms and property as appropriate (§ 75B-2-111). |
Requirements one by one
Who qualifies and when
Under § 75-2-603(2), the deceased devisee must be a grandparent, descendant of a grandparent, or stepchild of the testator or the donor of a power exercised by the will. The statute's definition of devisee includes someone already dead when the will was signed, a qualifying class member, and an appointee under a testamentary power. A surviving descendant is one not deemed to have predeceased the testator under § 75-2-702.
Substitute descendants and class gifts
For an individual devise, § 75-2-603(2)(a) sends the share to the deceased devisee's surviving descendants per capita at each generation. Subsection (b) uses that allocation for covered class gifts, but excludes class descriptions such as “issue,” “descendants,” “heirs,” “relatives,” and “family.” A surviving class member keeps the share that member would have taken had the deceased members also survived.
Under § 75-2-702(1), a person who cannot be shown by clear and convincing evidence to survive an event by 120 hours is treated as predeceased. Subsection (4) states exceptions, including operative simultaneous-death language or an express different survival period in the governing instrument.
Failed gifts, alternatives and trusts
Under § 75-2-604, another failed nonresiduary gift enters the residue; a failed share of a residue left to multiple people passes to the other residuary devisees in proportion to their interests. Section 75-2-603(1)(a) says a general residuary clause counts as an alternative devise for a nonresiduary gift only if the will specifically says failed gifts pass there.
Section 75-2-603(2)(d) lets an expressly designated alternative taker supersede the substitute descendants only when that taker is entitled to take. Subsection (e) also allows descendants of a deceased appointee to substitute even if they are outside the power's objects, unless the power's language expressly excludes them. Separate § 75B-2-111 applies will and other governing-instrument construction rules to trust terms and property as appropriate.
What trips people up
Under § 75-2-601, a finding of contrary intention changes the will-construction default. Section 75-2-603(2)(c) treats “if he survives me” or “my surviving children” as sufficient contrary-intent wording absent clear and convincing evidence. Those words can matter even when the named person left surviving descendants. The will's actual alternative-gift language must also be checked under subsection (d).
Common questions
Does a stepchild count? Yes. Section 75-2-603(1)(e) defines stepchild to include a child of a surviving, deceased, or former spouse of the testator or relevant power donor.
Does the residue automatically override substitute descendants? No. Section 75-2-603(1)(a) requires the will specifically to direct failed nonresiduary gifts to the residue before that clause counts as an alternative devise.
Statutes and sources
- Utah Code §§ 75-2-601, 75-2-603, 75-2-604, 75-2-702 and 75B-2-111. The source fields above contain verbatim official excerpts, section URLs and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
What does Utah law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current Utah law apply to your situation, with citations you can check.
Opens in Ezel Pro.
- Starts from the statutes this survey is built on
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace