'I'm Not Quite Dead Yet!': Rethinking the Anti-Lapse Redistribution of a Dead Beneficiary's Gift

35 Pages Posted: 19 Mar 2014

See all articles by Eloisa C. Rodriguez-Dod

Eloisa C. Rodriguez-Dod

Florida International University (FIU) - College of Law

Date Written: 2013


This Article critically examines the tension between an individual’s autonomy and societal goals in the context of anti-lapse statutes applicable to wills and trusts. It scrutinizes the current rules of construction regarding anti-lapse statutes and identifies their deficiencies in their application to wills and trusts. Anti-lapse statutes create a category of substitute takers when a beneficiary prematurely dies. They are based on the legislature’s presumption of how a testator or settlor would want his property distributed in these circumstances. However, a testator’s or settlor’s intent may effectively be frustrated by this presumed intent. This Article analyzes and identifies the deficiencies encountered in the common law, state statutes, Uniform Probate Code, and Uniform Trust Code, and proposes possible solutions. Finally, it questions the need for anti-lapse statutes and considers application of the doctrine of reformation in their stead.

Keywords: Wills, trusts, anti-lapse, statutes, jurisprudence, class gifts, Uniform Probate Code (UPC), UPC § 2-707, Uniform Trust Code (UTC) § 107, testator, settlor, beneficiary

Suggested Citation

Rodriguez-Dod, Eloisa C., 'I'm Not Quite Dead Yet!': Rethinking the Anti-Lapse Redistribution of a Dead Beneficiary's Gift (2013). Cleveland State Law Review, Vol. 61, No. 4, 2013, Florida International University Legal Studies Research Paper No. 14-10, Available at SSRN: https://ssrn.com/abstract=2411049

Eloisa C. Rodriguez-Dod (Contact Author)

Florida International University (FIU) - College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States

HOME PAGE: http://law.fiu.edu/faculty-2/eloisa-c-rodriguez-dod/

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