You expect your beneficiaries to outlive you, but it doesn’t always happen. So when you sit down to write your will, you should take a minute consider what you want to happen if one of your beneficiaries dies before you do.
Name an Alternate
The best way to plan for this unlikely scenario is to name an alternate (contingent) beneficiary for each of your first-level beneficiaries. That makes it clear what happens to property if your first choice doesn’t outlive you (or “survive” you, as the lawyers put it). For example, your will might say, “I leave my entire estate to my wife, Sara M. Meyer. If she does not survive me, I leave my entire estate to my daughter Allison R. Meyer and my son Paul L. Meyer, in equal shares.” Problem solved.
Some people include a second level of alternate beneficiaries. So the will clause above might go on to state, “If my daughter Allison R. Meyer doesn’t survive me, her share of my estate shall go to her son, Colin S. Henry. If my son Paul L. Meyer doesn’t survive me, his share of my estate shall go to Allison R. Meyer.”
It’s especially important to name alternates if you leave gifts to a group of people, not listing their names individually. For example, what would happen if you left your estate to “my nieces and nephews,” but one of them died before you did? Would the deceased person’s share go to the others in the group, or to the deceased beneficiary’s children? You can specify the outcome you want in your will—but if you don’t, state law will do it for you. (This is one reason why it’s almost always better to name individuals you want to inherit instead of leaving assets to a group. There are other reasons, too—for example, it’s sometimes surprisingly difficult to determine who belongs in the group.)You can make your will online, quickly and easily, using Nolo's Online Will.
Keep Your Documents Up to Date
You should always update your estate planning documents—your will, living trust, powers of attorney, and beneficiary designations—when there’s a major change in your life situation. That includes the death of a major beneficiary such as a spouse or child. Even if you named alternates to inherit, go ahead and make new documents, naming the former alternate as the primary beneficiary and adding a new alternate.
(You’ll also want to review your documents if you get married or divorced, have a child, or move to a different state; see “When to Make a New Will.”)
What Happens If There’s No Alternate Beneficiary
If you don’t update your will and it does not name an alternate, a gift to a deceased beneficiary is said to have “lapsed” or “failed.” Depending on state law and how the will is written, the property will go to either:
- the residuary beneficiary named in the will
- the beneficiary’s descendants, under your state’s “anti-lapse” law, or
- your heirs under state law, as if there were no will.
The residuary beneficiary. The residuary beneficiary is the person who inherits everything that isn’t left specifically to another beneficiary. Some wills clearly state that lapsed gifts become part of the residuary estate. If so, then the gift passes to the residuary beneficiary.
But many wills do not define the residuary estate this way. In that situation, your state’s anti-lapse law may apply.
The beneficiary’s descendants. Every state (except Louisiana) has an “anti-lapse” law, which tries to guess what you would want when a bequest to a relative fails and the will doesn’t provide an alternate beneficiary. Anti-lapse laws generally give property to the children of the deceased beneficiary. For example, if you left money to your daughter, didn’t name an alternate, and she died first, the money would go to her children.
Most anti-lapse laws apply only if the deceased beneficiary:
- was a close relative: parent, sibling, niece or nephew, uncle or aunt, first cousin, and so forth, and
- left children of his or her own.
Because these laws almost never apply to a beneficiary who isn’t related to you by blood, spouses are not covered. So if you leave everything to your spouse and don’t name an alternate beneficiary, and your spouse dies before you do, children from your surviving spouse’s previous marriage would not inherit. Instead, the property would pass as if there were no will. (See why it’s a good idea to keep your estate plan up to date?)
If the anti-lapse law doesn’t apply because the beneficiary was not a blood relative covered by the statute, the law may direct that the gift goes into the residuary estate. Otherwise, the gift will go to your heirs under state law.
Anti-lapse laws can be complicated. If your executor (the person who’s in charge of wrapping up your estate) needs to figure out who inherits what, he or she will probably need to consult an experienced probate lawyer.
Your heirs. If the will doesn’t say who should receive some or all of the property of a deceased beneficiary, and your state’s anti-lapse statute doesn’t apply because the deceased beneficiary wasn’t a close blood relative, the property will pass under state “intestate succession” laws, just as if there were no will.