When you create a last will and testament, you designate those beneficiaries who will receive your property and other assets when you pass away. You make the assumption that those named as beneficiaries will, of course, outlive you. However, what happens if a beneficiary does not outlive you?
You may be surprised to learn that the situation happens more than you might expect. The concept in the law of a “lapse” was created for such a situation. Accordingly, in this article, we will discuss in detail what “lapse” means when it comes to a last will and testament, and we will also discuss Florida’s “Anti-Lapse Statute,” and how it works.
If you have questions about creating a will, we welcome you to contact us at Doane & Doane. At our firm, we understand your questions and concerns, and we are here to help. We have focused our practice on probate, estate, and tax matters. We care deeply about people who are dealing with the emotional task of handling the death of a loved one or planning properly so their family is taken care of in case of a tragedy.
We are passionate about giving our clients the personalized legal counsel they need to appropriately take care of many major life and death decisions.
The Concept of a “Lapse” in a Will
As noted above, if a beneficiary of your Will dies before you die – i.e., there is a lapse in the will – then once you pass away, the traditional rule was that the gift would simply “fall back” into the estate of the person who made the will.
An example will help explain the concept. Assume we have a will where the person who made the will (the “testator”) says “I give my jewelry to John, and the rest of my estate goes to Susan.” Also assume that by the time the testator dies, John has already died. In that situation, the gift to John has lapsed, and the jewelry will fall back into the testator’s estate. Moreover, if John and Susan both die before the testator, then the testator’s estate will pass as if the testator did not have a will.
The Problem with a Lapse
Unwanted results usually flow from the concept of lapse. Taking the above example, the testator most likely would have wanted her jewelry to go to John’s children if John passed away, rather than having the gift shared in an unintended way once brought back into the testator’s estate.
Accordingly, Florida (like many other states) created a Florida Anti-Lapse Statute. The Florida Anti-Lapse Statute states that if there is a lapse in a gift given in a will, the gift will pass to the intended beneficiary’s surviving family members, provided that those surviving family members are descendants of the testator’s grandparents.
Again, let’s go back to our example above. If John has already died when the testator dies, then the gift of jewelry could go to John’s surviving family members under the Florida Anti-Lapse Statute as long as John’s surviving family members are descendants of the testator’s grandparents. So, if John were the testator’s son and John was survived by his children, then the children would get the jewelry under the Florida Anti-Lapse Statute.
If, however, John was simply a friend of the testator, then John’s surviving children would not be descendants of the testator’s grandparents. Thus, the Florida Anti-Lapse Statute would not be triggered. In this latter scenario, the jewelry would fall back into the testator’s estate.
Lorenzo v. Medina
Lorenzo v. Medina is a rather famous case involving the Florida Anti-Lapse Statute that demonstrates the law’s operation. In that case, the testator drafted a will that left 50% of his estate to his brother and 50% to his brother-in-law.
Knowledgeable of the legal concept of a “lapse,” the testator also wrote into the will that, should either beneficiary die before the testator, then the respective 50% share would go to the wife of the brother, and wife of the brother-in-law.
What happened was the brother and his wife died before the testator. So, when the testator died, the 50% share meant for the brother and wife was contested. The children of the brother and wife claimed that the Florida Anti-Lapse Statute meant that they should receive the 50%; whereas the brother-in-law claimed that the Florida Anti-Lapse Statute is not triggered and that he should receive that 50% (in addition to the 50% he already received).
The appeals court in Florida found in favor of the brother-in-law. The court reasoned that the will accounted for the brother’s death, so the 50% became a gift to the brother’s wife. However, since the brother’s wife was not a descendant of the testator’s grandparents, the Florida Anti-Lapse Statute does not apply. The brother-in-law ended up with the entire 100% of the testator’s estate.
In sum, the lesson from the legal concept of a lapse, and the Florida Anti-Lapse Statute is that once you create a will, you need to take the time to periodically update your will to account for changed circumstances. The experienced attorneys at Doane & Doane can help you do that.
Look to Doane & Doane for Help with Your Will
Founded in 2003 by husband and wife legal team, Randell C. Doane and Rebecca G. Doane, Doane & Doane provides legal and financial services to families, individuals, and businesses throughout Southeast Florida.
Estate planning is about much more than just giving away property. It is an act of love and kindness, with the ultimate goal of providing for the future financial security of your loved one. At Doane & Doane, our Wills and Trusts Attorneys West Palm Beach help people plan for retirement, make provisions for loved ones, and minimize tax liability. Experienced wills and trusts attorneys know which tools to use to get the best results for their clients. Our lawyers can help you determine which tools are best suited to your specific circumstances.
When it comes to probate matters, such as the formal administration of an estate, Florida fiduciaries seek the assistance of the attorneys at Doane & Doane, P.A. to administer and manage their trusts and estates. Notably, the founding partners of Doane & Doane are board-certified West Palm Beach Probate Attorneys. With the additional advantage of certified public accountancy in their backgrounds, they present a unique combination of skills and experience which enables them to effectively settle, administer, and manage clients’ trusts and estates.
We know that overseeing an estate can be a time-consuming and complicated process. We help clients every step of the way. Our probate administrative services include:
1. Proving in court that a deceased person’s will is valid
2. Identifying and inventorying the deceased person’s property
3. Property appraisal
4. Supervising and arranging the estate’s debts and taxes
5. Distributing property as directed by a will
6. Transferring title and ownership of assets to the proper beneficiaries
The personal representative, executor, or executrix must follow Florida law to conclude the decedent’s affairs, including:
1. Giving the proper notices to proper parties
2. Collecting the decedent’s property
3. Receiving claims against the estate
4. Paying valid claims and disputing others
5. Distributing estate property according to the will or state law
6. Selling estate property to cover debts or allow for proper distribution, if necessary
Call us at Doane & Doane, P.A., to help you create or update your last will and testament. You can reach us at 561-656-0200. Call us today.