WHERE DO LEGACIES GO WHEN THEY LAPSE?

December 1, 2010 § 2 Comments

When a devise or bequest is made to a person who predeceases the testator, the devise or bequest is said to lapse.  Here is the analysis of what happens when there is a lapse:

  1. If the testator directs what to do in the event of a lapse, follow the directions of the testator.  Many wills have language like: “I leave all of my estate … to my wife, and if she shall predecease me, then to my sister.” 
  2. If there is no mention in the will, then what happens next depends on the relationship between the testator and the legatee who predeceased.  MCA § 91-5-7 provides that if the predeceased legatee was a lineal descendant of the testator who has furher lineal descendants, the legacy will descend to them.  If the predeceasd legatee was not a lineal descendant, the legacy lapses into the residuary.  In the Matter of the Estate of Roland, 920 So.2d 539, 542 (Miss. App. 2006). 

A few examples:

Wife is the legatee, and she predeceases the testator.  The will makes no provision of what is to happen should she predecease him.  Wife is not a lineal descendant.  She is a collateral descendant.  Her legacy lapses into the residuary.  This is so even where she has other children or heirs who are not the testator’s and who survive her. 

Daughter is the legatee, and she predeceases the testator.  There is no provision for what happens to her legacy if she predeceases the testator.  Her legacy descends to her heirs. 

Daughter is the legatee, and she predeceases the testator.  The will provides that her share will go to the First Methodist Church if she predeceases the testator.  Her legacy lapses and will go to the church, regardless whether she has lineal heirs.

If there is no residuary clause in the will, the property passes by intestacy to the descendants of the testator.  Tinnin v. First Bank of Miss., 502 So.2d 659, 665 (Miss. 1987). 

Thanks to Leonard B. Cobb, Esq. for this.

 

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