Who gets the inheritance if the beneficiary of the will dies before the testator?

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UPDATED: Jul 16, 2021

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Written By: Jeffrey JohnsonUPDATED: Jul 16, 2021Fact Checked

When a beneficiary dies before the will maker, or testator, the gift to the beneficiary is said to have lapsed. Some states have anti-lapse statutes so that when a beneficiary does die before the will maker, the gift goes to the heirs of the beneficiary anyway, depending on the circumstances. The key to figuring out who gets the inheritance is to search the will and the state’s law.

Searching the Will
In all states, a will maker’s intent is always honored above the court’s default rules, so it is vital to read the will. When you review the will, look for phrases by the will maker such as “if the beneficiary survives me by 48 hours.” This phrasing by the will maker is known as a survival clause. Survival clauses overrule anti-lapse clauses, which means that if the will maker specifically did not intend for the descendents of the beneficiary to get the gift in the case the beneficiary died before the will maker, this intent will be honored. If the will maker added a survival clause in the will, then the inheritance will be divided between the surviving listed beneficiaries. Alternately, if the will maker designated an alternative recipient in the case of death of the beneficiary before the will maker, it will also be honored.

If you do not see any survival clauses, then look for phrasing such as, “the residue to go to…” This is called a residual clause. When the will maker adds a residual clause, it specifies where the inheritance goes when that beneficiary dies. So, if the beneficiary is already dead, then the inheritance will automatically go to the residue beneficiary.

Searching the Law
If the will maker did not use any of the above language, then the state’s probate code (inheritance law) will fill in this gap that the will maker left out. The majority of states have adopted anti-lapse provisions. An anti-lapse provision states that when the beneficiary dies before the will maker, their gift goes to the next of kin in that beneficiary’s line, such as the beneficiary’s wife, children or parents.

A minority of states still uphold the old principle of survivorship. This rule states that if the beneficiary does not outlive the will maker by at least 120 hours, then the beneficiary loses the inheritance and their share is distributed evenly to the rest of the living beneficiaries.

Probate codes can be viewed online at your state’s court website. Simply run a search for “Probate Code.” You may also wish to consult with an attorney for help.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

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