Divorce, Death, and Other Events Legally Affecting a Will
After reading a will, it may become clear that circumstances affecting a will and its beneficiaries have changed. Common situations, such as divorce or the death of a beneficiary, are often addressed in the language of the will or under state law.
Divorce
Most states automatically revoke gifts made to former spouses and sometimes gifts made to relatives of former spouses when a testator gets divorced. Any appointment of a former spouse as an executor in a will may also be revoked upon divorce. A death occurring during a divorce may not affect a spouse’s beneficiary designation, but a death during a divorce when the couple was already permanently separated is more likely to revoke the designation. An award might be honored if the testator drafted a new will after the divorce and continued to include their former spouse as a beneficiary, considering that the testator had the opportunity to change the terms after divorce.
Death of a Beneficiary
The death of a beneficiary before the testator dies may also affect who inherits under a will. The will may explicitly state what should happen in the event that a beneficiary dies, but state laws such as anti-lapse statutes (discussed below) may provide guidance if the will is silent.
A gift to a group of people not individually named will be affected when one person in the group dies only to the extent that the deceased beneficiary may be excluded from the group. The gift will generally not go to the deceased beneficiary’s own heirs unless the will or an anti-lapse statute specifies otherwise. For example, Maya executes a will in which she leaves her $45,000 savings account to her two sisters. One of Maya’s sisters predeceases her, leaving behind a son. When Maya dies, her remaining living sister will inherit the entire bank account.
Subsequent Death of a Beneficiary
It is common for a will to specify that a beneficiary cannot inherit unless they survive the testator for a certain amount of time. This is sometimes called the "survivorship period" and is often between five and 60 days. State law may also provide a survivorship period if a will does not, but survivorship periods imposed by state law are usually shorter (only a few days). Survivorship periods strive to prevent assets from being distributed according to a beneficiary’s estate plan rather than the testator’s estate plan. If neither a will nor state law imposes a survivorship period, a beneficiary could potentially live only a few hours longer than the testator and still inherit.
Failed Gifts and Anti-Lapse Statutes
If a beneficiary is unable to inherit under the will, the named alternative beneficiary will take their place. However, if no alternative beneficiary is named, the gift is "lapsed" or "failed." The will or state law may determine how a lapsed or failed gift should be distributed. Sometimes lapsed or failed gifts are to go to the residuary beneficiary named in the will, but most states also employ anti-lapse statutes. If the will does not specify how a lapsed or failed gift should be handled, and state law does not explicitly cover the lapsed or failed gift, the property will pass under intestate succession laws as if there were no will.
Anti-lapse statutes seek to infer a testator’s intentions by allowing a gift to pass through the deceased beneficiary to their heirs. These statutes often only apply to "close" relatives (children, parents, siblings, nieces and nephews, aunts and uncles, or first cousins). State law may also describe exactly how a gift should be divided with a deceased beneficiary’s children. For example, Tod leaves his estate to his two children, Marsha and Bryan, without alternative beneficiaries. Marsha dies before Tod, leaving behind two children, Emma and Ellis. Under some state laws, Emma and Ellis would split their mother’s one-half share of Tod’s estate, and Bryan would still receive his one-half share. Under other state laws, Emma and Ellis would split Tod’s estate equally with Bryan in one-third shares.
Property That Is No Longer Part of the Estate
Sometimes property described in a will is sold, destroyed, or given away before the testator dies. State law usually provides a solution for this scenario. Some states follow a version of the Uniform Probate Code (UPC), which generally states that a beneficiary may be entitled to an item that clearly replaced the lost item or property matching the approximate value of the lost item. In many states that do not follow the UPC or have similar laws, the gift will fail, and the beneficiary will receive nothing. Courts in these jurisdictions may be receptive to the argument that a beneficiary should receive an item that clearly replaced the missing item, but this is not a firm rule.
