Substitute Gifts and Antilapse: What Happens When a Beneficiary Dies First

14-2603. Substitute gifts; class gifts; definitions A. If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent or a stepchild of either the testator or the donor of a power of appointment exercised by the testator's will, the following apply: 1. Except as provided in paragraph 3 of this subsection, if the devise is not in the form of a class gift and the deceased devisee leaves surviving descendants, a substitute gift is created in the devisee's surviving descendants and they take, by representation, the property to which the devisee would have been entitled if the devisee had survived the testator. 2. Except as provided in paragraph 3 of this subsection, if the devise is in the form of a class gift, other than a devise to issue, descendants, heirs of the body, heirs, next of kin, relatives or family or a class described by similar language, a substitute gift is created in the surviving descendants of the deceased devisee. 3. If the will creates an alternative devise with respect to a devise for which a substitute gift is created by paragraph 1 or 2 of this subsection, the substitute gift is superseded by the alternative devise. B. Unless the language that creates a power of appointment expressly prohibits the substitution of the appointee's descendants for the appointee, a surviving descendant of a deceased appointee can be substituted for the appointee. C. For the purposes of section 14-2601, words of survivorship, such as in a devise to an individual "if he survives me", or in a devise to "my surviving children", are, in the absence of clear and convincing evidence to the contrary, a sufficient indication of an intent contrary to the application of this section. D. For the purposes of this section: 1. "Alternative devise" means a devise that is expressly created by the will and under the terms of the will can take effect instead of another devise on the happening of one or more events. 2. "Class member" includes a person who fails to survive the testator but who would have taken under a devise in the form of a class gift if that person had survived the testator. 3. "Devise" includes an alternative devise, a devise in the form of a class gift and an exercise of a power of appointment. 4. "Devisee" includes a class member if the devise is in the form of a class gift, a person or class member who was deceased at the time the testator executed the will, and an appointee under a power of appointment exercised by the testator's will. 5. "Stepchild" means a child of the surviving, deceased or former spouse of the testator or of the donor of a power of appointment and not of the testator or donor. 6. "Surviving devisee" or "surviving descendant" means a devisee or a descendant who neither predeceased the testator nor is deemed to have predeceased the testator under section 14-2702. 7. "Testator" includes the donee of a power of appointment if the power is exercised in the testator's will.