anti lapse statute in elder law

What is the Anti-Lapse Statute in Elder Law?

Let’s begin with a better question. What if my beneficiary dies before I do, but my will is not updated to reflect this? This is when an anti-lapse statute can step in. This law has been recognized by the Uniform Probate Code. It is followed by any state that has adopted the Uniform Probate Code, such as Massachusetts.

Here is an example of how it works. Bill and Mary created their will or their trust, and they state in the will/trust that their three children get everything equally. Their children, Mo, Larry, and Curly, will inherit when they pass away. However, Mo predeceases his parents. So what happens to Mo’s share? 

The anti-lapse statute states that Mo’s share does not lapse; instead, Mo’s share goes to Mo’s descendants. Mo’s child, Bill, and Mary’s grandchild would receive Mo’s inheritance.

Let’s look at the actual words to dive deeper into the meaning. The term ‘lapse’ means to not happen. This would be like an insurance policy that can lapse, and you no longer have coverage or protection. The word ‘anti’ means to stop the policy from lapsing. So the term ‘anti’ is to be against the lapsing of the coverage or protection so that the protection remains. 

The anti-lapse statute dictates Mo’s gift should not lapse or fail to go through because if it fails, it does not go to his children but instead to Mo’s brothers, Larry and Curly. The anti-lapse statute will preserve the intent of the gift and ensure that it goes down to Mo’s children or Bill and Mary’s grandchildren. 

There is a catch to the anti-lapse statute. There is specific language that requires the person inheriting to be a blood relative of the testators who made the will or trust. This means it would have to be a lineal descendant. Usually, a grandchild will work with the anti-lapse statute. However, the statute would exclude all non-blood relatives, such as stepchildren or in-laws, including the husbands and wives of the original heirs to inherit.   

Referring to our example, although Bill and Mary may think that if Mo, Larry, or Curly predecease them, they are happy with the in-laws inheriting the share, it would not occur according to the anti-lapse statute. So the long and short of it is to make sure you work with your estate planning or elder law attorney to put contingencies or contingent beneficiaries in place to cover all your bases.

It is essential to plan who your primary beneficiaries are in your will or trust, such as your children, but also to plan and include backup beneficiaries in your will or trust in case they predecease you. If you want the share to go in a specific direction, then you must spell it out in your will and/or trust. Another reason to state how you want things to occur is that not all states have adopted the Uniform Probate Code, which means there may not be an anti-lapse statute to stop unintended beneficiaries from receiving gifts. 

To wrap up the main points, the two ways to avoid a gift from lapsing is to have a backup beneficiary in your will in your trust, but also to do your annual reviews with your attorney for the three L’s. These are changes in law, changes in life, and changes in learning. At the annual review, you will review if anything is going on that may impact your will or trust. For example, if one of your beneficiaries, such as your child, has a change in health and is not doing well. In addition, you will want to ensure that your will or trust is updated accordingly so if they predecease you, it’s clear where their share will go after you pass away.

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