Will Anti-Lapse and Substitute Gifts in Wisconsin
At a glance
| Instruments and gifts covered | Revocable provision for outright gift at decedent's death in a governing instrument, including a will (§§ 854.01(2), 854.06(2)). |
|---|---|
| Which devisees qualify | Transferee must be decedent's grandparent, issue of a grandparent, or stepchild (§ 854.06(2)). |
| Death or failure trigger | Covered transferee fails to survive decedent; individual gift can name someone already dead at execution (§ 854.06(1)(a)1., (3)). |
| Descendant survival period | Issue must survive decedent; § 854.03(1) generally deems survival under 120 hours insufficient, subject to § 854.03(5). |
| Who takes and how | Surviving issue of covered transferee take per stirpes, using the child-branch allocation in § 854.04(1) (§ 854.06(3)). |
| Class gifts | Class member's share qualifies only if member dies after instrument execution (§ 854.06(1)(a)2.). |
| Failed gift and residue | Other failed nonresiduary transfer enters instrument's residue; failed multiperson residuary share goes proportionately to other residuary transferees (§ 854.07(1)–(2)). |
| Contrary intent and survival words | Express lapse direction, surviving contingent transferee, or other contrary intent can displace substitution; extrinsic evidence may show intent (§ 854.06(4)). |
| Alternative gifts and appointments | Contingent transferees take first; appointment covered unless substitute issue could not be appointees under the power (§ 854.06(1)(a)3., (4)(a)2.). |
| Trust and nonprobate reach | Governing instrument includes trusts and nonprobate designations, but § 854.06 reaches only qualifying revocable outright death transfers (§§ 854.01(2), 854.06(2)). |
Requirements one by one
Covered gift and person
Under § 854.06(2), substitution concerns a revocable provision for an outright transfer at death to the decedent's grandparent, a grandparent's issue, or a stepchild. The definition in § 854.01(2) includes a will, trust instrument, insurance policy and beneficiary designation. The quoted rule still requires the particular transfer to meet § 854.06(2)'s revocable and outright conditions.
Failure, survivors and division
Section 854.06(1)(a)1. includes an individually named recipient even if already dead when the instrument was executed. A covered recipient who does not survive the decedent leaves the gift to surviving issue under § 854.06(3). Under § 854.04(1)(a), the statute divides it per stirpes, beginning with one share for each surviving child and each deceased child who left surviving issue, then repeating within a deceased child's branch.
Under § 854.03(1), the law generally treats an individual who must survive an event as predeceased unless survival by 120 hours is established. Under § 854.03(5)(am)1., the law excepts an instrument that specifies another period; paragraph 2. covers an instrument that says no period is required. Those exceptions must be checked before applying the 120-hour rule to a substitute taker.
Class gifts, backup gifts and residue
Under § 854.06(1)(a)2., a class member's share is included only when that member dies after instrument execution. A named contingent recipient takes before the substitute issue under § 854.06(4)(a)2. If none survives, the provision can revive substitution for a qualifying earlier group. Under § 854.07(1), the law sends other failed nonresiduary transfers into the instrument's residue; an otherwise failed share of a multiperson residue goes proportionately to the other residuary recipients.
What trips people up
An express lapse direction under § 854.06(4)(a)1. defeats § 854.06(3), and § 854.06(4)(bm) permits contrary intent shown with extrinsic evidence. A decedent's appointment under a power may qualify under § 854.06(1)(a)3., but only if the substitute issue could have been appointees under that power. These rules concern an outright death transfer; they do not decide every later trust interest.
Common questions
Can a stepchild's issue take? Yes, if the stepchild fits § 854.06(1)(c)'s definition and the other conditions of § 854.06 are met.
Does a class member who died before the will was signed qualify? Section 854.06(1)(a)2. requires a class member's death to occur after execution, even though an individual gift under § 854.06(1)(a)1. can name someone already dead.
Statutes and sources
- Wis. Stat. §§ 854.01, 854.03, 854.04, 854.06 and 854.07. 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.
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