Will Anti-Lapse and Substitute Gifts in Virginia
At a glance
| Instruments and gifts covered | Will gifts, including class gifts; qualifying revocable-trust provisions also covered (§ 64.2-418(B)–(C)). |
|---|---|
| Which devisees qualify | Beneficiary is grandparent or grandparent's descendant of testator or settlor (§ 64.2-418(B)). |
| Death or failure trigger | Beneficiary dead at execution of will or trust, or at testator's or settlor's death (§ 64.2-418(B)). |
| Descendant survival period | Descendants must survive testator or settlor; general donative rule deems under-120-hour survivors predeceased unless an exception applies (§§ 64.2-418(B), 64.2-2202, 64.2-2205). |
| Who takes and how | Equal shares at closest surviving-descendant degree; share of deceased member of that degree passes per stirpes to that member's descendants (§ 64.2-418(B)). |
| Class gifts | Beneficiary under a class gift expressly covered (§ 64.2-418(B)). |
| Failed gift and residue | Uncovered failed nonresiduary gift enters residue; failed multiperson residuary share passes proportionally to others; undisposed property passes by intestacy (§§ 64.2-416(B), 64.2-200(A), 64.2-201(A)). |
| Contrary intent and survival words | Contrary intent in will or trust can override; survival exceptions include an express different period (§§ 64.2-418(B), 64.2-2205(2)). |
| Alternative gifts and appointments | No express alternative-gift or appointment priority in § 64.2-418; will or trust's contrary intent controls (§ 64.2-418(B)). |
| Trust and nonprobate reach | Trust provision must be revocable immediately before settlor's death on/after July 1, 2018; beneficiary would take by reason of that death (§ 64.2-418(C)). |
Requirements one by one
Covered beneficiaries and substitute shares
Under Va. Code § 64.2-418(B), the deceased beneficiary must have been a grandparent or a descendant of a grandparent of the testator or settlor. The rule expressly includes class gifts and death before execution. Among the deceased beneficiary's descendants, one share goes to each surviving descendant in the closest degree of kinship; a deceased descendant in that degree who leaves surviving descendants has one share distributed per stirpes to that branch.
Failed gifts and residue
Subject to substitution, § 64.2-416(B) sends a failed nonresiduary devise, bequest, or distribution into the residue. A failed share in a multiperson residue goes to the other residuary recipients in proportion to their interests, unless the will or trust indicates contrary intent. When no effective will disposition remains, § 64.2-200(A) sends real estate and § 64.2-201(A) sends personal estate through intestate succession.
Survival and trust reach
Section 64.2-418(B) requires substitute descendants to survive the testator or settlor. Under § 64.2-2202, a donative disposition ordinarily treats a person as predeceased unless clear and convincing evidence shows survival by 120 hours; § 64.2-2205(1)–(2) allows stated exceptions, including an express different period. Under § 64.2-418(C), the trust rule reaches only a provision revocable immediately before a settlor's death on or after July 1, 2018, where the beneficiary would have taken because of that death.
What trips people up
Under § 64.2-418(B), a contrary intention in the will or trust instrument can displace substitution. Section 64.2-416(D) sets the same revocability and death-linked boundary for the failed-gift fallback in trusts; the will and trust provisions should be read together.
Common questions
Does the rule protect a class beneficiary? Yes. Section 64.2-418(B) expressly includes one under a class gift.
Can a descendant inherit if the beneficiary died before the will was signed? Yes, if the other conditions of § 64.2-418(B) are met.
Statutes and sources
- Va. Code §§ 64.2-418, 64.2-416, 64.2-200, 64.2-201, 64.2-2202, and 64.2-2205. The source fields above contain verbatim official excerpts, URLs, and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
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