Wills are one of the most common estate planning tools; however, wills do not always address every possible life scenario, so we must look for guidance in the law. For example, in the situation where a devisee (the person prescribed in a will to receive a gift) predeceases the testator (the person who made the will), under common law, the gift lapses and reverts to the residuary estate or falls under the laws of intestate succession. Colorado and Wyoming enacted antilapse statutes to address this problem in specific situations.
In both states, the statutes give favored status to close family relations of the testator. If a devisee is a grandparent of the testator or a descendant of a grandparent of the testator, the antilapse statute will be applied.1 That means if a devisee is not related to the testator (or the donor of a power of appointment in Colorado), the antilapse statutes will not apply. The Wyoming Supreme Court even stated that the Wyoming antilapse statute makes no provision for stepchildren or other persons who are not “legally adopted;” a lineal descendant is a lineal descendant. See Sanderson v. Bathrick (In re Estate of Seader), 76 P.3d 1236 (Wyo. 2003). We note that this is not the case for beneficiaries of trusts. The beneficiaries of a trust do not need to be related to the settlor in order for the antilapse statute to apply. See C.R.S. §15-11-707.
Although Colorado and Wyoming enacted similar antilapse statutes, we would like to point out the most notable variance between the two, being the distribution of the gift to the deceased devisee’s surviving descendants. The variance is best illustrated in an example.
Presume Terry’s will devised all of her mineral interest to Avery. Avery is Terry’s first cousin. Avery had three children, Bailey, Charlie and Drew. Bailey had two children, Buster and Bobby. Charlie had no children. Drew had one child, Dana. Avery dies before Terry, triggering the antilapse statute for Terry’s will. Then, two of Avery’s children, Bailey and Drew, also die before Terry, involving two generations in the application of the statutory scheme.
Under Colorado law, because the deceased devisee, Avery, left surviving descendants, those descendants take the mineral interest per capita at each generation. See C.R.S. §15-11-603(2)(a). Avery’s surviving descendants are as follows: one child, Charlie, and three grandchildren, Buster and Bobby (Avery’s grandchildren through Bailey) and Dana (Avery’s grandchild through Drew). Accordingly, the property is divided into as many equal shares as there are (i) surviving descendants in the generation nearest to the designated ancestor that contains one or more surviving descendants (Charlie), and (ii) deceased descendants in the same generation who left surviving descendants, if any (Bailey and Drew). See C.R.S. §15-11-709. In this example, the property is divided into thirds because Charlie, Bailey and Drew are all part of the same generation. Each surviving descendant in the nearest generation is allocated one share (Charlie takes 1/3). Id. The remaining shares, if any, are combined (2/3 remaining) and then divided in the same manner among the surviving descendants of the deceased descendants (Buster, Bobby and Dana split the remaining 2/3) as if the surviving descendants who were allocated a share and their surviving descendants had predeceased the distribution date. Id. Therefore, Charlie would take 1/3 of the mineral interest, and Buster, Bobby and Dana would each take 2/9 of the mineral interest.
Under Wyoming law, the issue of the deceased devisee take equally if they are all of the same degree of kinship to the devisee; if they are of unequal degree, however, those of more remote degree take per stirpes. See Wyo. Stat. 2-6-106. Here, Bailey, Charlie and Drew are all part of the same generation. As in Colorado, therefore, the surviving issue of the deceased devisee, Charlie, takes 1/3 of the mineral interest. Bailey and Drew’s share is allocated per stirpes to their surviving children. Per stirpes is defined as “[p]roportionally divided between beneficiaries according to their deceased ancestor’s share.” See Fosler v. Collins (In re Estate of Fosler), 13 P.3d 686, 688 (Wyo. 2000). Bailey and Drew would each be entitled to a 1/3 share in the mineral interest if they were still alive. Therefore, Bailey’s 1/3 share is divided proportionately between Buster and Bobby. Because Dana is the only descendant of Drew, Dana receives all of Drew’s 1/3 share. Therefore, Charlie would take 1/3 of the mineral interest, Dana would take 1/3 of the mineral interest, and Buster and Bobby would each take 1/6 of the mineral interest.
As a testator, you can create a will that is not subject to the antilapse rule if your devisee should predecease you. In Colorado, the antilapse statute itself states that the use of language such as “and if he does not survive me, the gift shall lapse” or “to A and not to A’s descendants” shall be sufficient indication of an intent contrary to the application of the statute. See C.R.S. §15-11-603(2)(c). Similarly, in Wyoming, the provisions of the Wyoming probate code apply unless the testator evinces a contrary intention in the will. See Sanderson, at 1249. The antilapse statute automatically applies unless the testator indicates otherwise in his will. Id.
Understanding the application of statutory provisions, like the antilapse statutes, is essential for proper estate planning. It is important to consult with an experienced attorney to navigate the intricacies of statutory provisions. With our experience at Tjornehoj & Hack LLC we can help ensure your estate plan truly operates as you wish.
Tjornehoj & Hack LLC, 2020
- Colorado also applies the statute if a devisee is a grandparent or a descendant of a grandparent of the donor of a power of appointment exercised by the testator’s will. See C.R.S. §15-11-603(2).