Chapter 12.12 Lapse and the Antilapse Statute

• Jurisdiction: Washington

§12.12 LAPSE AND THE ANTILAPSE STATUTE

As a general rule, if a will makes no provision for an alternate taker, a gift to a beneficiary who predeceases the testator is said to lapse and has no effect. The lapsed gift becomes part of the residue. If it was a

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gift of all or a portion of the residue, however, and there are no other residuary takers, then it passes in accordance with the intestacy statute.

(1) The antilapse statute

The antilapse statute, RCW 11.12.110, creates an exception to the general rule under circumstances in which it is presumed that lapse would be contrary to the intention of the testator. More specifically, if the gift is to any issue of a grandparent of the decedent, the gift does not lapse and the gift passes to the descendants of the predeceased beneficiary by right of representation. Issue of grandparents includes the decedent's children, siblings, and parents, as well as the decedent's aunts and uncles, first cousins, and their descendants. A gift to a grandparent, however, is not covered. More importantly, spouses and families of spouses are omitted from the classes protected by the statue. Cf. In re Sims's Estate, 39 Wn.2d 288, 293, 235 P.2d 204 (1951) (decided under former statute that expressly denied protection to spouses). Thus if a will leaves gifts to "my sister and to my wife's brother" without saying more, and both the sister and the brother-in-law predecease the testator, the gift to the predeceased sister passes to the sister's children but the gift to the predeceased brother-in-law lapses, leaving nothing to his children. RCW 11.12.110 does not apply to a spouse or to relatives who are more remote than issue of a grandparent of the testator.

The statute expressly applies to gifts made under both wills and revocable living trusts (a revocable trust made by the grantor that becomes irrevocable at the grantor's death). Case law reached the same result under the prior statute, which referred generally to property "devised or bequeathed" without any specific reference to wills or trusts. In re Button's Estate, 79 Wn.2d 849, 854, 490 P.2d 731 (1971). In 2005, the statute was amended to also apply to irrevocable inter vivos trusts (e.g., a gift in trust to my sister for life, then to her children, when one of the children predeceases her).

Although the antilapse statute seems to be relatively straightforward, in practice its application has generated a fair amount of case law. There is a...