When planning your estate, you will probably consider leaving assets to your children, if you have them. But what happens if one of your children dies before you do? In Massachusetts, the answer involves a law called the Anti-Lapse Statute.
What is the Anti-Lapse Statute?
This law provides a backup plan for close family members, to make sure that if a child or very close family member dies before you, their children get the inheritance instead. That way, the gift stays in the family and doesn’t just disappear back into your estate to be redistributed.
The Gibney Case
In Massachusetts, a new case recently examined this law in closer detail. In this case, a woman included a gift to her mother in her will, as long as she survived her. The mother did not survive her. The court determined that if your will includes certain language, mentioning that someone needs to "survive you" to get their inheritance, the Anti-Lapse Statute doesn’t apply. That means if you put in your will that your son gets the house only if he survives you, and unfortunately he does not survive you, then the house won’t automatically go to his children. Instead, it will be handled according to directions in the will of your residuary estate.
What Should You Do?
1. Be Clear in Your Will: Words matter. If you want to make sure your grandchildren get something if their parent dies before you, do not use the phrase “if he/she survives me” when talking about who gets what. If your will includes this phrase or similar language, then you need to follow this by clearly stating who should inherit that property if your loved one does not survive you.
2. Update Your Estate Plan if a Child Dies Before You: Anytime a significant event happens in life, you should consider reviewing and updating your estate plan.
3. Consult with an Attorney: A lawyer will help to ensure your estate plan is accurate and accomplishes your goals.
The purpose of estate planning is to ensure things go smoothly for your family after you’re gone, even if life throws curveballs. The exact words you use in your will can change everything. Four words, “if he/she survives me” can make a huge difference. Make sure your will is clear about what you want to happen after your death.
If you live in Massachusetts and want to ensure your estate plan accomplishes your goals, please contact us by calling our office at 617-489-5900 or schedule a brief free consultation by clicking on this link: https://seniorsolutions.as.me/FreeConsult
Senior Solutions, Attorneys at Law, is an Estate Planning and Elder Law firm, serving the Greater Boston, Massachusetts area, since 2001. We are ready to help you with Medicaid Planning, Estate Planning, Probate, Guardianship & Conservatorships, Special Needs Trusts, and Fiduciary Services.
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