What Happens If A Beneficiary In A Will Dies Before The Testator?

January 29th, 2015

The general rule in interpreting last wills as to who inherits property if a beneficiary predeceases (dies before) the testator (person whose will is being interpreted after death) suggests that one must survive the testator in order to inherit, otherwise the gift lapses (fails).

Many of the estates that I am involved in administering have that problem—one of the beneficiaries dies before the testator. What happens then? It seems unfair that a gift simply fails if an intended beneficiary unexpectedly dies before the testator, and the testator fails to amend the last will. Enter the anti-lapse statute.f

Ohio Revised Code 2107.52 was enacted March 22, 2012 in order to “save” the gift. Essentially, the state permits another person to stand in the shoes of the predeceased beneficiary. There are certain requirements. Although this post is intended to explain the basics and not cover some of the more intricate issues, a predeceased beneficiary’s issue may stand in his or her shoes to inherit the gift if those issue are descendants of the testator. Attorneys drafting wills must be very careful to ensure the testator’s intent is to allow that possibility, that a substitute gift may go to issue of a beneficiary. Should the testator not wish that result (the anti-lapse result), then he or she needs to take affirmative steps to prevent that possibility, meaning that “magic words” are necessary to avoid the application of the anti-lapse statute.

R.C. 2107.52(C)(1) was added to the statute to overturn the Ohio Supreme Court’s Polen decision (a case from 2001) regarding what magic words are needed as an intent to negate the anti-lapse statute.

This statute is a concern to all testators, beneficiaries, and families involved in the passing of a loved one. The law presumes that the testator (and his or her attorney) know that the anti-lapse statute applies, so that if the goal is to avoid the implication, then certain drafting techniques must be used. This is certainly a trap for the unwary.