Anti-lapse statutes with respect to class gifts

1.    In general – almost all states apply their anti-lapse statutes to class gifts.  Many statutes expressly so provide.  In both Texas and under the UPC, the anti-lapse statute trumps the class gift rule.

2.    TPC 68(a) – a devisee who is a descendant of the testator or his parents, and who would have taken under a class gift if he had survived the testator, is treated as a beneficiary for purposes of this section unless he died before the execution of the will. The descendants of predeceasing devisee takes or gift fails.

3.    UPC 2-605 – a devisee who is a grandparent or lineal descendant of a grandparent, and who would have taken under a class gift if he had survived the testator, is treated as a beneficiary for purposes of this section whether his death occurred before or after the execution of the will. The issue of predeceasing devisee takes or gift fails.

4.    Majority rule – most cases hold that the anti-lapse statute applies even if it does not expressly provide.  In these states, the anti-lapse statute trumps the class gift rule if the predeceasing class member is within the degree of relationship covered by the statute.

5.    Minority rule – some courts hold that the anti-lapse statute does not apply to class gifts.  Since the gift was to a class, if there are any members of the class, there is no lapse on which the statute can operate.