Legal Definitions - lapsed devise

A lapsed devise occurs when a gift of real property (such as land or a building) specified in a will cannot be successfully transferred to the intended recipient because that recipient is no longer legally able to receive it at the time the person who made the will (the testator) dies.

The most common reason for a devise to lapse is that the intended recipient (known as the devisee) dies before the testator. When a devise lapses, the property typically does not go to the devisee's heirs. Instead, it usually becomes part of the testator's remaining estate (known as the residuary estate) and is distributed according to other provisions in the will, or if there are no such provisions, according to the laws of intestacy (dying without a valid will).

Here are a few examples to illustrate this concept:

• Example 1: Individual Beneficiary Predeceases Testator

  Eleanor's will states, "I give my mountain cabin to my beloved niece, Clara." Five years after Eleanor wrote her will, Clara tragically passes away in an accident. Two years later, Eleanor dies. Because Clara, the intended recipient, died before Eleanor, the gift of the mountain cabin to Clara is a lapsed devise. The cabin would not go to Clara's children or heirs; instead, it would become part of Eleanor's residuary estate and be distributed to whoever is named to receive the remainder of Eleanor's property in her will.

• Example 2: Organizational Beneficiary Ceases to Exist

  Mr. Henderson's will includes the provision, "I devise my undeveloped plot of land on Elm Street to the 'Community Garden Project,' a local non-profit organization." Before Mr. Henderson's death, the Community Garden Project experiences severe financial difficulties and officially dissolves. When Mr. Henderson later passes away, the devise of the land to the organization is a lapsed devise because the intended recipient no longer exists. The land would then be added to Mr. Henderson's residuary estate.

• Example 3: Anti-Lapse Statutes Do Not Apply

  Sarah's will specifies, "I leave my rental duplex to my dear friend, Mark." Mark dies six months before Sarah. Although Mark has surviving children, the devise to Mark is a lapsed devise. Many states have "anti-lapse statutes" that prevent a gift from lapsing if the beneficiary is a close relative (like a child or sibling) of the testator and has surviving descendants. However, these statutes typically do not apply to non-relatives like friends. Therefore, the duplex would not go to Mark's children but would instead fall into Sarah's residuary estate, unless Sarah's will had specifically named an alternative beneficiary for the duplex.