What Happens When Someone Named in a Will Dies First?

A person may sign a will leaving money to a friend or relative, then live long enough that the intended recipient dies first. If the will is never updated, the executor has to determine what happens to that gift.

It is not always correct to assume the gift disappears or goes to the deceased beneficiary's estate.

Does the will name someone else?

Start with the document. A will may name an alternate recipient or explain what happens if a beneficiary does not survive. The exact wording can matter, including conditions attached to the gift.

A clear backup provision can reduce uncertainty, but it must be read with the rest of the will and applicable law. An executor should not simply choose the person they think the deceased would have preferred.

What is an antilapse statute?

Iowa Code section 633.273 generally provides that when a devisee dies before the will maker and leaves descendants who survive the will maker, those descendants take the gift per stirpes unless the will clearly and explicitly indicates otherwise.

Per stirpes describes distribution through family branches. The statute also addresses certain class gifts. Iowa's provision should not be replaced with a general rule borrowed from another state, since antilapse laws vary.

Are there exceptions?

Yes. Section 633.274 specifically addresses a gift to the will maker's spouse who does not survive. That gift lapses notwithstanding section 633.273 unless the will clearly and explicitly provides otherwise.

For example, a gift to a friend who leaves surviving descendants raises a different statutory analysis from a gift to a spouse who dies first. The recipient's identity, descendants, and the will's language all need attention.

Why review the plan after a death?

Even when a statute supplies an answer, it may not be the answer the person now wants. Reviewing alternates after a beneficiary's death gives the will maker a chance to clarify the plan.

This article concerns gifts under a will. A retirement account, insurance policy, or trust may follow its own governing documents and rules. Updating the will should therefore be part of a broader review of the people named throughout the estate plan.

Tyler ThompsonAuthor