Page 28 - Southern Exposure - January '25

Page 28, Southern Exposure

elder estate planning

Understanding The Antilapse Statute In Florida

By Anné Desormier-Cartwright, JD, Esq.

In estate planning and Practical Example Of The Antilapse Statute law upholds the testator’s presumed wishes and prevents
probate law, unforeseen Consider the following scenario: the unintended lapsing of gifts.
situations can arise when • Testator’s will: “I leave $100,000 to my daughter However, careful estate planning and clear drafting
a named beneficiary in a Mary.” of wills remain essential to ensure that your assets are
will passes away before the • Situation: Mary passes away before the testator, but distributed according to your precise intentions. For
testator (the person who she is survived by two children. personalized advice, consulting an experienced estate
created the will). This can • Outcome: Under Florida’s antilapse statute, Mary’s planning attorney is always recommended.
lead to confusion regarding share of $100,000 would pass equally to her two children We Are Here To Help
the distribution of assets. ($50,000 each), since Mary is a descendant of the testator’s We understand that you are grieving the loss of a loved
To address this, Florida has grandparent. one. When you are ready, we are here to help you take the
enacted what is known as However, if the testator’s will explicitly states, “If Mary next step in your estate planning journey, whether you are
the antilapse statute, a legal predeceases me, her gift shall lapse,” then the antilapse starting, completing, or updating your estate plan. Give us
provision that preserves the inheritance rights of a deceased statute would not apply, and the gift would fail. a call to schedule your in-person or virtual appointment.
beneficiary’s descendants. Why The Antilapse Statute Is Important In Estate If you have questions about your estate plan and what
What Is An Antilapse Statute? Planning documents you should have in place to plan your estate,
The antilapse statute is designed to prevent gifts in a will The antilapse statute plays a critical role in preserving schedule a free consultation today by calling our office at
from “lapsing” or failing when a beneficiary predeceases the testator’s likely intentions and ensuring that close family (561) 694-7827, Anné Desormier-Cartwright, Esq., Elder
the testator. In such cases, the statute allows the gift to members do not lose their inheritance due to the death of and Estate Planning Attorneys PA, 480 Maplewood Drive,
pass to the deceased beneficiary’s descendants, rather than a named beneficiary. However, it is essential for testators Suite 3, Jupiter, FL 33458.
reverting to the residuary estate or being redistributed to to clearly outline their intentions in the will to prevent any The content of this article is general and should not be
other beneficiaries. ambiguity. relied upon without review of your specific circumstances by
The intent behind the statute is to honor the presumed Avoiding Pitfalls: Drafting Clear Wills competent legal counsel. Reliance on the information herein
wishes of the testator, who likely intended for the To avoid unintended consequences, individuals creating is at your own risk, as it expresses no opinion by the firm
beneficiary’s family to receive the gift in their place. a will in Florida should: on your specific circumstances or legal needs. An attorney
Florida’s Antilapse Statute: Key Provisions • Specify what happens if a named beneficiary client relationship is not created through the information
Florida’s antilapse statute is codified under Section predeceases them. provided herein.
732.603 of the Florida Statutes. Here are the critical • Use clear and unambiguous language to outline To comply with the U.S. Treasury regulations, we must
elements: alternate beneficiaries. inform you that (i) any U.S. federal tax advice contained
1. Application to Certain Relatives: The antilapse • Regularly update their will to reflect changes in family in this newsletter was not intended or written to be used,
statute applies only if the predeceased beneficiary is: circumstances, such as the death of a beneficiary. and cannot be used, by any person for the purpose of
o A grandparent of the testator, or Conclusion avoiding U.S. federal tax penalties that may be imposed
o A descendant of a grandparent of the testator Florida’s antilapse statute under Section 732.603 on such person and (ii) each taxpayer should seek advice
(e.g., siblings, children, grandchildren, nieces, or provides a safety net when a named beneficiary, who is a from their tax advisor based on the taxpayer’s particular
nephews). close family member, predeceases the testator. By ensuring circumstances.
If the beneficiary falls within this category and passes that gifts pass to the deceased beneficiary’s descendants, the
away before the testator, the beneficiary’s descendants will
inherit the gift per stirpes (in shares determined by their
generational line).
2. Exclusions Based on Will Language: The antilapse
statute does not apply if the will explicitly provides an
alternative plan for the gift. For example, if the will states,
“If my son John predeceases me, his share shall go to
charity,” the statute will not override this instruction.
3. Gifts to Non-Family Members: If a non-family
member (someone not a grandparent or descendant of a
grandparent) is the predeceased beneficiary, the antilapse
statute does not apply. In such cases, the gift will lapse and
fall into the residuary estate unless otherwise specified in
the will.
How Per Stirpes Distribution Works
When the antilapse statute applies, the distribution to
the deceased beneficiary’s descendants follows the per
stirpes method. Under this method:
• The share of the deceased beneficiary is divided
equally among their surviving descendants by generation.
• For instance, if a beneficiary has three children and
one child predeceases the testator but leaves two children
(grandchildren of the testator), the deceased child’s share
will be divided between the two grandchildren.

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