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Learning Outcomes

This article explains lapse of testamentary gifts on the MBE, including:

how the common-law doctrine of lapse operates across specific, general, demonstrative, and residuary gifts, and how lapsed gifts shift into the residuary or intestacy.
when modern anti-lapse statutes apply, which relatives are protected, what “issue” means, and how statutory substitution changes the distribution pattern in exam hypotheticals.
how to analyze survivorship language, simultaneous-death provisions, and alternative-taker clauses to determine whether anti-lapse is triggered, displaced, or rendered irrelevant.
how void gifts differ from lapsed gifts and how courts treat beneficiaries who were already dead at execution under traditional and modern statutory schemes.
how lapse and anti-lapse interact with class gifts, including determining class membership, reallocating shares among surviving class members, and preserving shares for descendants of deceased class members.
how lapsed residuary shares are handled under the traditional no-residue-of-a-residue rule versus the modern majority approach, and when intestacy still controls.
how to distinguish lapse questions from ademption and related doctrines on MBE-style fact patterns and apply a clear issue-spotting sequence to reach the correct answer.

MBE Syllabus

For the MBE, you are required to understand the rules governing the failure of testamentary gifts due to predeceasing beneficiaries and the statutory modifications that may prevent such failure, with a focus on the following syllabus points:

The common-law doctrine of lapse and its application to specific, general, and residuary testamentary gifts.
The operation, scope, and limits of anti-lapse statutes, including who is protected and how substitution works.
The effect of lapse and anti-lapse on class gifts and residuary clauses, including modern “no residue of a residue” rules.
The distinction between lapse and ademption and the basic steps for analyzing failure-of-gift problems on the MBE.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

If a beneficiary named in a will predeceases the testator, what generally happens to the gift at common law (ignoring any statute)?
1. It passes to the beneficiary's heirs.
2. It lapses and falls into the residue or passes by intestacy.
3. It is held in trust for the testator's heirs.
4. It is distributed to the other named beneficiaries in equal shares.
Which of the following is most likely to prevent a gift from lapsing when the beneficiary predeceases the testator?
1. The beneficiary is a long-time friend of the testator.
2. The anti-lapse statute applies and the beneficiary left surviving issue.
3. The beneficiary disclaimed the gift before death.
4. The will is silent on survivorship and the beneficiary left no descendants.
In a class gift, if one member of the class predeceases the testator and no anti-lapse statute applies, what is the usual result?
1. The gift to that member lapses and passes to the member's heirs.
2. The entire class gift fails.
3. The surviving class members take the entire class gift.
4. The residuary beneficiary takes the share of the deceased class member.
A will leaves “the residue of my estate to my brothers, Alan and Ben, in equal shares.” Alan dies before the testator, leaving two children. The jurisdiction’s anti-lapse statute covers gifts to a descendant of the testator’s grandparents who leaves issue. How is the residue distributed?
1. Ben takes all the residue; Alan’s share lapses.
2. Alan’s estate takes his half.
3. Alan’s two children split Alan’s half, and Ben takes his half.
4. The entire residue passes by intestacy.

Introduction

When a testator makes a gift in a will to a beneficiary who dies before the testator, the gift may fail under the doctrine of lapse. This can have significant consequences for the distribution of the estate, especially if the will does not address survivorship or if statutory anti-lapse provisions apply. Lapse questions on the MBE often turn on small details: the type of gift, the relationship between testator and beneficiary, and the exact phrasing of the will.

Key Term: Lapse
The failure of a testamentary gift because the named beneficiary dies before the testator (or is treated as having predeceased), causing the gift to fall into the residue or, if there is no applicable residuary or statute, to pass by intestacy.

Key Term: Residuary Gift
A testamentary gift of “the rest,” “the residue,” or “all the remainder” of the estate after satisfaction of debts, expenses, and all other specific, general, and demonstrative gifts.

Key Term: Void Gift
A testamentary gift to a person who was already dead at the time the will was executed. At common law, the gift is void from the outset rather than “lapsed,” and traditional anti-lapse statutes may or may not apply depending on the jurisdiction.

Understanding lapse, anti-lapse statutes, and their effect on class gifts and residuary clauses is essential for MBE success. Many multiple-choice questions are designed so that two answers look plausible until you carefully apply these doctrines step by step.

The Doctrine of Lapse

At common law, if a beneficiary named in a will dies after the will is executed but before the testator, the gift to that beneficiary lapses. The lapsed gift does not go to the beneficiary’s estate or spouse; instead, it becomes part of the residuary estate or, if there is no effective residuary disposition, passes by intestacy.

Lapse reflects a presumed intent: the testator named a particular person, and if that person cannot take, the testator is presumed to prefer that the property go under the will’s remaining structure, not down the predeceased beneficiary’s family line—unless an anti-lapse statute or the will itself says otherwise.

Key Term: Anti-Lapse Statute
A statute that prevents a gift from lapsing by substituting certain predeceasing beneficiaries’ descendants (their “issue”) to take the gift in their place, usually when the beneficiary was related to the testator and left surviving descendants.

Application of Lapse

At common law (absent an applicable statute or contrary will provision), lapse applies broadly:

It applies to specific, general, and demonstrative gifts:
- Specific: “my car to A”
- General: “$10,000 to B”
- Demonstrative: “$10,000 to C, to be paid from my account at X Bank”
If the lapsed gift is a non-residuary gift (e.g., a specific or general gift), it “falls into” the residue and is added to whatever residuary gift the will provides.
If the lapsed gift is itself a share of the residue, the consequences depend on the jurisdiction:
- Under the traditional no-residue-of-a-residue rule, a lapsed residuary share passed by intestacy.
- Under modern statutes, the remaining residuary beneficiaries typically take the lapsed share proportionally, unless anti-lapse applies to substitute descendants.

Key Term: No-Residue-of-a-Residue Rule
The older common-law rule that if one residuary beneficiary’s share lapsed, that share did not go to the other residuary beneficiaries but instead passed by intestacy. Many modern statutes abrogate this rule.

Void Gifts vs. Lapse

Lapse presupposes that the beneficiary was alive when the will was executed and then died before the testator. A different issue arises when the named beneficiary was already dead when the will was made.

At common law, a gift to someone who was already dead is void, not lapsed.
Traditional anti-lapse statutes were often phrased to apply only when the beneficiary “predeceases the testator,” which does not literally cover someone who died before execution.
Some modern statutes (such as the UPC) expand anti-lapse coverage to certain void gifts, but unless the statute expressly does so, assume on the MBE that anti-lapse applies only if the beneficiary was alive when named.

Simultaneous Death and Lapse

MBE fact patterns sometimes involve near-simultaneous deaths (e.g., car accidents or common disasters). Most modern statutes, including the Uniform Probate Code, adopt a 120-hour rule:

Key Term: Simultaneous Death Rule
A statutory rule (often a 120-hour requirement) providing that a beneficiary must survive the testator by a specified period—commonly 120 hours—to be treated as having survived; otherwise the beneficiary is treated as having predeceased for purposes of distribution.

If the beneficiary does not satisfy the survival period, the beneficiary is treated as having predeceased the testator, and lapse (or anti-lapse) analysis is triggered.

Worked Example 1.1

Testator leaves “ $10,000 to my friend Mark, and the rest to my daughter Lisa.” Mark dies before the testator. What happens to the$ 10,000?

Answer:
The gift to Mark lapses under the common-law doctrine of lapse. Mark’s heirs do not take. The $10,000 falls into the residue and passes to Lisa as part of the residuary estate.

Worked Example 1.2

Testator’s will leaves “$5,000 to my brother Alan.” Alan dies before the testator, leaving two children. The jurisdiction’s anti-lapse statute applies to gifts to siblings who leave issue.

Answer:
The gift does not lapse. Under the anti-lapse statute, Alan’s two children are substituted for Alan and take the $5,000 in equal shares. The gift does not fall into the residue.

Worked Example 1.3

Testator executes a will leaving “$20,000 to my friend Zoe.” Unknown to the testator, Zoe died one month before the will was signed. The jurisdiction’s anti-lapse statute applies only when a beneficiary “predeceases the testator.”

Answer:
The gift to Zoe is void, not lapsed, because Zoe was dead at execution. The anti-lapse statute (by its wording) applies only when a beneficiary survives execution but dies before the testator, so it does not save the gift. The $20,000 passes under the residuary clause, or by intestacy if there is no residue.

Anti-Lapse Statutes

Most jurisdictions have enacted anti-lapse statutes to soften the harsh result of the common-law rule. These statutes typically provide that, if a covered beneficiary predeceases the testator and leaves surviving descendants, the beneficiary’s descendants take the gift in the beneficiary’s place.

Although the exact scope of coverage varies by state, many statutes follow a pattern similar to the Uniform Probate Code:

Covered beneficiaries often include a descendant of the testator, or a descendant of the testator’s grandparents (e.g., siblings, nieces, nephews, and cousins).
Some statutes are narrower (covering only descendants of the testator); others broader (covering any relative, or even any beneficiary).

Key Term: Issue
A person’s lineal descendants of all degrees—children, grandchildren, great-grandchildren, and so on—whether by blood or, in many jurisdictions, by legal adoption.

Who Is Protected

Anti-lapse statutes vary, but on an MBE-style question you will often see something like:

“If a devisee who is a descendant of the testator’s grandparents fails to survive the testator, leaving surviving descendants, the descendants take by representation.”

Typical coverage patterns:

Many states: gifts to a descendant of the testator (children, grandchildren).
Others: gifts to a descendant of the testator’s grandparents (includes siblings, nieces, nephews, and first cousins).
A few: apply to any relative, and very rarely to any beneficiary at all.

Important points:

The statute does not save the gift for the predeceasing beneficiary’s estate.
Instead, it substitutes the beneficiary’s issue as takers, usually under the jurisdiction’s normal intestacy distribution scheme (e.g., per stirpes or per capita at each generation).
The predeceasing beneficiary’s spouse does not take under anti-lapse; unless also an “issue” in that jurisdiction’s definition, the spouse is not a statutory substitute.

Limits of Anti-Lapse Statutes

Anti-lapse statutes generally require:

The beneficiary must fall within the class specified by the statute (e.g., “descendant of the testator,” or “descendant of the testator’s grandparents”).
The beneficiary must leave at least one surviving descendant who outlives the testator.
There must be no controlling contrary intent expressed in the will.

If any of these conditions fails, the common-law doctrine of lapse applies.

Survivorship Language and Contrary Intent

The anti-lapse statute is a default rule. It does not apply if the will shows a contrary intent.

Key Term: Words of Survivorship
Phrases in a will that explicitly require a beneficiary to survive the testator, such as “if she survives me,” “to A, if then living,” or “to B, provided he is alive at my death.”

Traditionally, explicit survivorship language (“to Alan, if he survives me”) is treated as expressing a contrary intent and thus defeating the anti-lapse statute, even if Alan leaves issue. Under some modern statutes (including the UPC), mere words of survivorship, standing alone, may not be enough to negate anti-lapse unless they are clearly linked to an alternative disposition or show an intent to cut off descendants.

For MBE purposes, when you see clear survivorship language directly conditioning the gift on the beneficiary’s survival, you should generally treat that as sufficient to prevent anti-lapse from applying, unless the fact pattern specifically points you toward a modern UPC-style rule.

Alternative-Taker Clauses

A will may also provide what happens if the primary beneficiary does not survive—for example, “to A, but if A does not survive me, to B.”

In that situation:

The gift is not treated as lapsed; the condition for A’s gift failed, and B’s alternative-gift provision controls.
Most exam questions treat the existence of such an alternative-taker clause as strong evidence of contrary intent, so anti-lapse will not redirect the gift to A’s descendants.

Worked Example 1.4

Testator’s will states: “I devise my vacation home to my sister, Joan, if she survives me.” Joan dies before Testator, leaving three children. The jurisdiction’s anti-lapse statute covers gifts to descendants of the testator’s grandparents who leave issue.

Answer:
The explicit survivorship condition (“if she survives me”) indicates that the testator intended Joan to take only if she outlived the testator. Because she did not, the condition fails. Most jurisdictions treat this as a contrary intent that prevents the anti-lapse statute from operating. The gift therefore lapses and passes under the residuary clause, or by intestacy if there is no residue.

Worked Example 1.5

Testator’s will states: “I leave $30,000 to my nephew, Carl.” Carl is the son of Testator’s brother. Carl dies before Testator, leaving one child. The jurisdiction’s anti-lapse statute applies to “a descendant of the testator’s grandparents who leaves descendants surviving the testator.”

Answer:
Carl is a descendant of the testator’s grandparents (he is a nephew), and he left a surviving child. No contrary intent appears in the will. The anti-lapse statute applies and substitutes Carl’s child in Carl’s place. The child takes the $30,000. The gift does not fall into the residue.

Lapse and Class Gifts

A class gift is a gift to a group described by relationship or status (for example, “to my children,” “to my nieces and nephews,” or “to the descendants of my brother Bob”), rather than by individually naming each person.

Key Term: Class Gift
A testamentary gift to a group identified by a general description (such as “my children”), where the shares of predeceasing members are redistributed among the surviving class members, unless the anti-lapse statute or the will provides otherwise.

In a typical class gift:

The size of the class is determined at the testator’s death (subject to the “rule of convenience,” which closes the class at that time).
If a class member predeceases the testator and anti-lapse does not apply, the surviving class members take the entire gift in equal shares—the predeceased member’s share is redistributed among them.

Anti-Lapse and Class Gifts

Anti-lapse can modify this usual result. The basic approach is:

Determine whether the gift is a class gift.
Identify the deceased class member.
Check whether that member is within the class protected by the anti-lapse statute and left surviving issue.
Check whether there is contrary intent in the will.

If the anti-lapse statute applies:

The deceased class member’s issue take that member’s share of the class gift.
The surviving class members still take their shares.

If anti-lapse does not apply:

The usual class-gift rule applies: the surviving class members divide the entire class gift among themselves.

Worked Example 1.6

Testator leaves “$60,000 to my grandchildren in equal shares.” Testator has three grandchildren at the time of death: A, B, and C. B dies before the testator, leaving two children. The anti-lapse statute applies to gifts to descendants of the testator.

Answer:
Each grandchild’s share would be $20,000. Because B is a descendant of the testator and left surviving issue, the anti-lapse statute applies. B’s two children together take B’s$ 20,000 share, usually splitting it equally ( $10,000 each), while A and C each take$ 20,000.

Worked Example 1.7

Testator leaves “$60,000 to my grandchildren in equal shares.” At Testator’s death, there are three grandchildren: A, B, and C. B died before Testator without leaving any descendants. The jurisdiction’s anti-lapse statute applies only to gifts to descendants who leave issue.

Answer:
B is a descendant of the testator but left no issue. The anti-lapse statute does not apply. Because this is a class gift, the surviving class members, A and C, divide the entire $60,000 between them. A and C each take$ 30,000; nothing goes to B’s estate.

Lapse in the Residuary Clause

Residuary gifts require special attention because a lapsed residuary share may either pass to the other residuary beneficiaries or pass by intestacy, depending on the jurisdiction and any applicable anti-lapse statute.

If a gift of a portion of the residue lapses:

Traditional rule (no-residue-of-a-residue): The lapsed residuary share does not go to the remaining residuary beneficiaries but instead passes by intestacy.
Modern majority rule: The remaining residuary beneficiaries take the lapsed share in proportion to their original shares, unless anti-lapse applies to substitute descendants of the predeceasing residuary beneficiary.

Interaction with Anti-Lapse

If a residuary beneficiary is within the anti-lapse class and leaves surviving issue, anti-lapse usually operates first:

The predeceasing residuary beneficiary’s issue take that beneficiary’s share of the residue.
Only if anti-lapse does not apply (for example, no surviving issue, or beneficiary outside the protected class, or contrary intent) do you apply the no-residue-of-a-residue or modern residuary rules.

Worked Example 1.8

Testator’s will provides: “I leave the residue of my estate to my brothers, Alan and Ben, in equal shares.” Alan dies before Testator, leaving two children. Ben survives Testator. The jurisdiction’s anti-lapse statute applies to gifts to descendants of the testator’s grandparents and has abrogated the traditional no-residue-of-a-residue rule.

Answer:
Alan is a descendant of the testator’s grandparents and left surviving issue, so the anti-lapse statute applies. Alan’s two children are substituted for Alan and take his one-half share of the residue (splitting it equally). Ben takes his one-half share. Nothing passes by intestacy.

Worked Example 1.9

Assume the same facts as in Worked Example 1.8, except that Alan dies without leaving any descendants.

Answer:
Because Alan left no surviving issue, the anti-lapse statute does not apply. Under the modern majority approach—which has abolished the no-residue-of-a-residue rule—Ben takes Alan’s lapsed half of the residue, so Ben receives the entire residue. Under the older common-law rule, Alan’s half of the residue would instead pass by intestacy. On the MBE, if the question is silent, you should typically assume the modern approach unless the fact pattern clearly points to the traditional rule.

Revision Tip

Always check whether the anti-lapse statute applies to the beneficiary and whether the will expresses a contrary intent (such as survivorship language or an alternative-taker clause).
Identify the type of gift (specific, general, class, or residuary); lapse operates differently on residuary versus non-residuary gifts.
If anti-lapse does not apply, the common-law lapse rules and any modern residuary rules control.

Distinguishing Lapse from Ademption and Other Doctrines

Lapse is frequently tested alongside ademption, another doctrine that causes a testamentary gift to fail, but for a different reason.

Key Term: Ademption
The failure of a specific testamentary gift because the testator no longer owns the specifically devised property at death. The subject property is gone or substantially changed, so the specific devisee ordinarily takes nothing in its place.

Key contrasts for the MBE:

Lapse focuses on the beneficiary dying before the testator (or being treated as having predeceased).
- The problem: the beneficiary is not alive to take.
- Solution: anti-lapse may substitute the beneficiary’s issue.
Ademption focuses on the property not being in the estate at death.
- The problem: the specifically devised asset is gone or has changed form.
- Solution: modern statutes sometimes give the devisee substitute property or proceeds, but anti-lapse is irrelevant because the beneficiary is alive.

Worked Example 1.10

Testator’s will provides: “I devise my car to my niece, Dana, and the rest of my estate to my nephew, Evan.” After executing the will, Testator sells the car and does not buy another. Testator and Dana both survive. How is the estate distributed?

Answer:
The gift of the car to Dana fails by ademption, not lapse, because the specifically devised property is no longer in the estate at Testator’s death. Dana receives nothing on account of the car. The value that would have been in the car is now part of the general estate and passes under the residuary clause to Evan. Lapse and anti-lapse do not apply because the beneficiary (Dana) survived the testator.

On the MBE, be careful not to confuse these doctrines. If the beneficiary dies first, think lapse/anti-lapse. If the property disappears or changes form, think ademption (or a related doctrine such as satisfaction).

Key Point Checklist

This article has covered the following key knowledge points:

At common law, a gift lapses if the beneficiary (who was alive at execution) predeceases the testator.
A lapsed non-residuary gift generally falls into the residue; if there is no residuary clause, it passes by intestacy.
Modern anti-lapse statutes substitute the issue of certain predeceasing relatives (e.g., descendants or descendants of grandparents) so the gift does not lapse.
Anti-lapse substitutes descendants, not the predeceasing beneficiary’s estate or spouse, and the descendants usually take by the jurisdiction’s intestacy pattern.
Anti-lapse does not apply if the beneficiary is outside the protected class, leaves no surviving issue, or the will contains contrary intent (such as clear survivorship or alternative-taker language).
In class gifts, the default rule is that surviving class members take the entire class gift, but anti-lapse can preserve the share of a predeceasing class member for that member’s issue.
Lapsed residuary shares traditionally passed by intestacy (no-residue-of-a-residue rule), but under modern statutes the remaining residuary beneficiaries usually take the lapsed share unless anti-lapse applies.
Lapse concerns the death of the beneficiary; ademption concerns the absence of the specifically devised property from the estate at death.
Always analyze lapse questions in sequence: identify who died when, determine the type of gift, check for an applicable anti-lapse statute, and then consider survivorship and alternative-taker language.

Key Terms and Concepts

Lapse
Anti-Lapse Statute
Residuary Gift
Void Gift
Simultaneous Death Rule
Issue
Class Gift
Words of Survivorship
No-Residue-of-a-Residue Rule
Ademption

Titles - Lapse