When Beneficiaries Predecease: An Empirical Analysis

76 Pages Posted: 7 Jun 2022 Last revised: 9 Dec 2022

See all articles by Adam J. Hirsch

Adam J. Hirsch

University of San Diego School of Law

Date Written: June 5, 2022

Abstract

Under current law, bequests to beneficiaries who predecease the testator “lapse” to the beneficiary of the residuary, unless they are preserved for the descendants of predeceased beneficiaries under an “antilapse” statute. The beneficiaries covered by antilapse statutes vary from state to state, but in most states today the statutes apply only to blood relatives of the testator as distant as first cousins. This Article examines the public policy of antilapse statutes, assessing them by undertaking the first-ever survey of popular preferences concerning the matter. Harvesting evidence for five types of beneficiaries, the study finds that the prevailing structure of antilapse statutes is both over- and under-inclusive. On one hand, among beneficiaries who comprise blood relatives, most respondents prefer to create substitute bequests only for descendants of predeceased children. Lawmakers should strike other relatives from the statutes’ coverage. On the other hand, most respondents would create substitute bequests for their descendants if their spouse predeceased them. Lawmakers should extend the range of the statutes accordingly. Finally, the Article advocates enhancing courts’ power to deviate from mechanical rules of lapse in situations where testamentary intent is less predictable.

Keywords: inheritance, wills, will-substitutes, trusts, estates, lapse, antilapse, uniform probate code, empirical analysis, default rules

JEL Classification: K11, K19, K39, K49

Suggested Citation

Hirsch, Adam Jay, When Beneficiaries Predecease: An Empirical Analysis (June 5, 2022). Adam J. Hirsch, "When Beneficiaries Predecease: An Empirical Analysis," Emory Law Journal, Vol. 72, No. 2, p. 307, 2022, San Diego Legal Studies Paper No. 22-012, Available at SSRN: https://ssrn.com/abstract=4128469 or http://dx.doi.org/10.2139/ssrn.4128469

Adam Jay Hirsch (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110
United States

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