SECTION 2-707. Uniform Probate Code
SURVIVORSHIP WITH RESPECT TO FUTURE INTERESTS UNDER TERMS OF TRUST; SUBSTITUTE TAKERS.
(a) [Definitions.] In this section:
(1) “Alternative future interest” means an expressly created future interest that
can take effect in possession or enjoyment instead of another future interest on the happening of one or more events, including survival of an event or failure to survive an event, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause in a will does not create an alternative future interest with respect to a future interest
SURVIVORSHIP WITH RESPECT TO FUTURE INTERESTS UNDER TERMS OF TRUST; SUBSTITUTE TAKERS.
(a) [Definitions.] In this section:
(1) “Alternative future interest” means an expressly created future interest that
can take effect in possession or enjoyment instead of another future interest on the happening of one or more events, including survival of an event or failure to survive an event, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause in a will does not create an alternative future interest with respect to a future interest
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created in a nonresiduary devise in the will, whether or not the will specifically provides that
lapsed or failed devises are to pass under the residuary clause.
(2) “Beneficiary” means the beneficiary of a future interest and includes a class member if the future interest is in the form of a class gift.
(3) “Class member” includes an individual who fails to survive the distribution date but who would have taken under a future interest in the form of a class gift had he [or she] survived the distribution date.
(4) “Descendants”, in the phrase “surviving descendants” of a deceased beneficiary or class member in subsections (b)(1) and (2), mean the descendants of a deceased beneficiary or class member who would take under a class gift created in the trust.
(5) “Distribution date,” with respect to a future interest, means the time when the future interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day.
(6) “Future interest” includes an alternative future interest and a future interest in the form of a class gift.
(7) “Future interest under the terms of a trust” means a future interest that was created by a transfer creating a trust or to an existing trust or by an exercise of a power of appointment to an existing trust, directing the continuance of an existing trust, designating a beneficiary of an existing trust, or creating a trust.
(8) Surviving”, in the phrase “surviving beneficiaries” or “surviving descendants”, means beneficiaries or descendants who neither predeceased the distribution date nor are deemed to have predeceased the distribution date under Section 2-702.
(b) [Survivorship Required; Substitute Gift.] A future interest under the terms of a trust is
(2) “Beneficiary” means the beneficiary of a future interest and includes a class member if the future interest is in the form of a class gift.
(3) “Class member” includes an individual who fails to survive the distribution date but who would have taken under a future interest in the form of a class gift had he [or she] survived the distribution date.
(4) “Descendants”, in the phrase “surviving descendants” of a deceased beneficiary or class member in subsections (b)(1) and (2), mean the descendants of a deceased beneficiary or class member who would take under a class gift created in the trust.
(5) “Distribution date,” with respect to a future interest, means the time when the future interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day.
(6) “Future interest” includes an alternative future interest and a future interest in the form of a class gift.
(7) “Future interest under the terms of a trust” means a future interest that was created by a transfer creating a trust or to an existing trust or by an exercise of a power of appointment to an existing trust, directing the continuance of an existing trust, designating a beneficiary of an existing trust, or creating a trust.
(8) Surviving”, in the phrase “surviving beneficiaries” or “surviving descendants”, means beneficiaries or descendants who neither predeceased the distribution date nor are deemed to have predeceased the distribution date under Section 2-702.
(b) [Survivorship Required; Substitute Gift.] A future interest under the terms of a trust is
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contingent on the beneficiary’s surviving the distribution date. If a beneficiary of a future
interest under the terms of a trust fails to survive the distribution date, the following apply:
(1) Except as provided in paragraph (4), if the future interest is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary’s surviving descendants. They take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the distribution date.
(2) Except as provided in paragraph (4), if the future interest is in the form of a class gift, other than a future interest to “issue,” “descendants,” “heirs of the body,” “heirs,” “next of kin,” “relatives,” or “family,” or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the distribution date passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which he [or she] would have been entitled had the deceased beneficiaries survived the distribution date. Each deceased beneficiary’s surviving descendants who are substituted for the deceased beneficiary take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the distribution date. For the purposes of this paragraph, “deceased beneficiary” means a class member who failed to survive the distribution date and left one or more surviving descendants.
(3) For the purposes of Section 2-701, words of survivorship attached to a future interest are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section. Words of survivorship include words of survivorship that relate to the distribution date or to an earlier or an unspecified time, whether those words of survivorship are expressed in condition-precedent, condition-subsequent, or any other form.
(1) Except as provided in paragraph (4), if the future interest is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift is created in the beneficiary’s surviving descendants. They take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the distribution date.
(2) Except as provided in paragraph (4), if the future interest is in the form of a class gift, other than a future interest to “issue,” “descendants,” “heirs of the body,” “heirs,” “next of kin,” “relatives,” or “family,” or a class described by language of similar import, a substitute gift is created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the distribution date passes to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary takes the share to which he [or she] would have been entitled had the deceased beneficiaries survived the distribution date. Each deceased beneficiary’s surviving descendants who are substituted for the deceased beneficiary take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the distribution date. For the purposes of this paragraph, “deceased beneficiary” means a class member who failed to survive the distribution date and left one or more surviving descendants.
(3) For the purposes of Section 2-701, words of survivorship attached to a future interest are not, in the absence of additional evidence, a sufficient indication of an intent contrary to the application of this section. Words of survivorship include words of survivorship that relate to the distribution date or to an earlier or an unspecified time, whether those words of survivorship are expressed in condition-precedent, condition-subsequent, or any other form.
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(4) If the governing instrument creates an alternative future interest with respect
to a future interest for which a substitute gift is created by paragraph (1) or (2), the substitute gift
is superseded by the alternative future interest if:
(A) the alternative future interest is in the form of a class gift and one or more members of the class is entitled to take in possession or enjoyment; or
(B) the alternative future interest is not in the form of a class gift and the expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment.
(c) [More Than One Substitute Gift; Which One Takes.] If, under subsection (b), substitute gifts are created and not superseded with respect to more than one future interest and the future interests are alternative future interests, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:
(1) Except as provided in paragraph (2), the property passes under the primary substitute gift.
(2) If there is a younger-generation future interest, the property passes under the younger-generation substitute gift and not under the primary substitute gift.
(3) In this subsection:
(A) “Primary future interest” means the future interest that would have
taken effect had all the deceased beneficiaries of the alternative future interests who left surviving descendants survived the distribution date.
(B) “Primary substitute gift” means the substitute gift created with respect to the primary future interest.
(C) “Younger-generation future interest” means a future interest that (i) is
(A) the alternative future interest is in the form of a class gift and one or more members of the class is entitled to take in possession or enjoyment; or
(B) the alternative future interest is not in the form of a class gift and the expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment.
(c) [More Than One Substitute Gift; Which One Takes.] If, under subsection (b), substitute gifts are created and not superseded with respect to more than one future interest and the future interests are alternative future interests, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:
(1) Except as provided in paragraph (2), the property passes under the primary substitute gift.
(2) If there is a younger-generation future interest, the property passes under the younger-generation substitute gift and not under the primary substitute gift.
(3) In this subsection:
(A) “Primary future interest” means the future interest that would have
taken effect had all the deceased beneficiaries of the alternative future interests who left surviving descendants survived the distribution date.
(B) “Primary substitute gift” means the substitute gift created with respect to the primary future interest.
(C) “Younger-generation future interest” means a future interest that (i) is
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to a descendant of a beneficiary of the primary future interest, (ii) is an alternative future interest
with respect to the primary future interest, (iii) is a future interest for which a substitute gift is
created, and (iv) would have taken effect had all the deceased beneficiaries who left surviving
descendants survived the distribution date except the deceased beneficiary or beneficiaries of the
primary future interest.
(D) “Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation future interest.
(d) [If No Other Takers, Property Passes Under Residuary Clause or to Transferor’s Heirs.] Except as provided in subsection (e), if, after the application of subsections (b) and (c), there is no surviving taker, the property passes in the following order:
(1) if the trust was created in a nonresiduary devise in the transferor’s will or in a codicil to the transferor’s will, the property passes under the residuary clause in the transferor’s will; for purposes of this section, the residuary clause is treated as creating a future interest under the terms of a trust.
(2) if no taker is produced by the application of paragraph (1), the property passes to the transferor’s heirs under Section 2-711.
(e) [If No Other Takers and If Future Interest Created by Exercise of Power of Appointment.] If, after the application of subsections (b) and (c), there is no surviving taker and if the future interest was created by the exercise of a power of appointment:
(1) the property passes under the donor’s gift-in-default clause, if any, which clause is treated as creating a future interest under the terms of a trust; and
(2) if no taker is produced by the application of paragraph (1), the property passes as provided in subsection (d). For purposes of subsection (d), “transferor” means the donor if the
(D) “Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation future interest.
(d) [If No Other Takers, Property Passes Under Residuary Clause or to Transferor’s Heirs.] Except as provided in subsection (e), if, after the application of subsections (b) and (c), there is no surviving taker, the property passes in the following order:
(1) if the trust was created in a nonresiduary devise in the transferor’s will or in a codicil to the transferor’s will, the property passes under the residuary clause in the transferor’s will; for purposes of this section, the residuary clause is treated as creating a future interest under the terms of a trust.
(2) if no taker is produced by the application of paragraph (1), the property passes to the transferor’s heirs under Section 2-711.
(e) [If No Other Takers and If Future Interest Created by Exercise of Power of Appointment.] If, after the application of subsections (b) and (c), there is no surviving taker and if the future interest was created by the exercise of a power of appointment:
(1) the property passes under the donor’s gift-in-default clause, if any, which clause is treated as creating a future interest under the terms of a trust; and
(2) if no taker is produced by the application of paragraph (1), the property passes as provided in subsection (d). For purposes of subsection (d), “transferor” means the donor if the
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power was a nongeneral power and means the donee if the power was a general power.
Comment
Rationale. The objective of this section is to project the antilapse idea into the area of future interests, thus preventing disinheritance of a descending line that has one or more members living on the distribution date and preventing a share from passing down a descending line that has died out by the distribution date.
Scope. This section applies only to future interests under the terms of a trust. For shorthand purposes, references in this Comment to the term “future interest” refer to a future interest under the terms of a trust. The rationale for restricting this section to future interests under the terms of a trust is that legal life estates in land, followed by indefeasibly vested remainder interests, are still created in some localities, often with respect to farmland. In such cases, the legal life tenant and the person holding the remainder interest can, together, give good title in the sale of the land. If the antilapse idea were injected into this type of situation, the ability of the parties to sell the land would be impaired if not destroyed because the antilapse idea would, in effect, create a contingent substitute remainder interest in the present and future descendants of the person holding the remainder interest.
Structure. The structure of this section substantially parallels the structure of the regular antilapse statute, Section 2-603, and the antilapse-type statute relating to beneficiary designations, Section 2-706.
Common-law Background. At common law, conditions of survivorship are not implied with respect to future interests. The rule against implying a condition of survivorship applies whether the future interest is created in trust or otherwise and whether the future interest is or is not in the form of a class gift. The only exception, where a condition of survivorship is implied at common law, is in the case of a multiple-generation class gift. See Restatement (Third) of Property: Wills and Other Donative Transfers §§ 15.3, 15.4 (2008). For example, in the simple case of a trust, “income to husband, A, for life, remainder to daughter, B,” B’s interest is not defeated at common law if she predeceases A; B’s interest would pass through her estate to her successors in interest (probably either her residuary legatees or heirs): see Waggoner, “The Uniform Probate Code Extends Antilapse-Type Protection to Poorly Drafted Trusts”, 94 Mich. L. Rev. 2309, 2331-32 (1996)), who would become entitled to possession when A died. If any of B’s successors in interest died before A, the interest held by that deceased successor in interest would likewise pass through his or her estate to his or her successors in interest; and so on.
Thus, a benefit of a statutory provision reversing the common-law rule and providing substitute takers is that it prevents cumbersome and costly distributions to and through the estates of deceased beneficiaries of future interests, who may have died long before the distribution date.
Subsection (b). Subsection (b) imposes a condition of survivorship on future interests to the distribution date – defined as the time when the future interest is to take effect in possession or enjoyment. The requirement of survivorship imposed by subsection (b) applies whether or not the deceased beneficiary leaves descendants who survive the distribution date and are takers of a substitute gift provided by subsection (b)(1) or (2). Imposing a condition of survivorship on a
Comment
Rationale. The objective of this section is to project the antilapse idea into the area of future interests, thus preventing disinheritance of a descending line that has one or more members living on the distribution date and preventing a share from passing down a descending line that has died out by the distribution date.
Scope. This section applies only to future interests under the terms of a trust. For shorthand purposes, references in this Comment to the term “future interest” refer to a future interest under the terms of a trust. The rationale for restricting this section to future interests under the terms of a trust is that legal life estates in land, followed by indefeasibly vested remainder interests, are still created in some localities, often with respect to farmland. In such cases, the legal life tenant and the person holding the remainder interest can, together, give good title in the sale of the land. If the antilapse idea were injected into this type of situation, the ability of the parties to sell the land would be impaired if not destroyed because the antilapse idea would, in effect, create a contingent substitute remainder interest in the present and future descendants of the person holding the remainder interest.
Structure. The structure of this section substantially parallels the structure of the regular antilapse statute, Section 2-603, and the antilapse-type statute relating to beneficiary designations, Section 2-706.
Common-law Background. At common law, conditions of survivorship are not implied with respect to future interests. The rule against implying a condition of survivorship applies whether the future interest is created in trust or otherwise and whether the future interest is or is not in the form of a class gift. The only exception, where a condition of survivorship is implied at common law, is in the case of a multiple-generation class gift. See Restatement (Third) of Property: Wills and Other Donative Transfers §§ 15.3, 15.4 (2008). For example, in the simple case of a trust, “income to husband, A, for life, remainder to daughter, B,” B’s interest is not defeated at common law if she predeceases A; B’s interest would pass through her estate to her successors in interest (probably either her residuary legatees or heirs): see Waggoner, “The Uniform Probate Code Extends Antilapse-Type Protection to Poorly Drafted Trusts”, 94 Mich. L. Rev. 2309, 2331-32 (1996)), who would become entitled to possession when A died. If any of B’s successors in interest died before A, the interest held by that deceased successor in interest would likewise pass through his or her estate to his or her successors in interest; and so on.
Thus, a benefit of a statutory provision reversing the common-law rule and providing substitute takers is that it prevents cumbersome and costly distributions to and through the estates of deceased beneficiaries of future interests, who may have died long before the distribution date.
Subsection (b). Subsection (b) imposes a condition of survivorship on future interests to the distribution date – defined as the time when the future interest is to take effect in possession or enjoyment. The requirement of survivorship imposed by subsection (b) applies whether or not the deceased beneficiary leaves descendants who survive the distribution date and are takers of a substitute gift provided by subsection (b)(1) or (2). Imposing a condition of survivorship on a
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future interest when the deceased beneficiary did not leave descendants who survive the
distribution date prevents a share from passing down a descending line that has died out by the
distribution date. Imposing a condition of survivorship on a future interest when the deceased
beneficiary did leave descendants who survive the distribution date, and providing a substitute
gift to those descendants, prevents disinheritance of a descending line that has one or more living
members on the distribution date.
The 120-hour Survivorship Period. In effect, the requirement of survival of the distribution date means survival of the 120-hour period following the distribution date. This is because, under Section 2-702(a), “an individual who is not established to have survived an event ...by 120 hours is deemed to have predeceased the event.” As made clear by subsection (a)(8), for the purposes of Section 2-707, the “event” to which Section 2-702(a) relates is the distribution date.
Note that the “distribution date” need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day, such as the time of death of an income beneficiary.
References in Section 2-707 and in this Comment to survival of the distribution date should be understood as referring to survival of the distribution date by 120 hours.
Ambiguous Survivorship Language. Subsection (b) serves another purpose. It resolves a frequently litigated question arising from ambiguous language of survivorship, such as in a trust, “income to A for life, remainder in corpus to my surviving children.” Although some case law interprets the word “surviving” as merely requiring survival of the testator (e.g., Nass’ Estate, 182 A. 401 (Pa. 1936)), the predominant position at common law interprets “surviving” as requiring survival of the life tenant, A. Hawke v. Lodge, 77 A. 1090 (Del. Ch. 1910); Restatement (Third) of Property: Wills and Other Donative Transfers §§ 15.3 cmt. f; 15.4 cmt. g (2008). The first sentence of subsection (b), in conjunction with paragraph (3), codifies the predominant common-law/Restatement position that survival relates to the distribution date.
The first sentence of subsection (b), in combination with paragraph (3), imposes a condition of survivorship to the distribution date (the time of possession or enjoyment) even when an express condition of survivorship to an earlier time has been imposed. Thus, in a trust like “income to A for life, remainder in corpus to B, but if B predeceases A, to B’s children who survive B,” the first sentence of subsection (b) combined with paragraph (3) requires B’s children to survive (by 120 hours) the death of the income beneficiary, A.
Rule of Construction. Note that Section 2-707 is a rule of construction. It is qualified by the rule set forth in Section 2-701, and thus it yields to a finding of a contrary intention. Consequently, in trusts like “income to A for life, remainder in corpus to B whether or not B survives A,” or “income to A for life, remainder in corpus to B or B’s estate,” this section would not apply and, should B predecease A, B’s future interest would pass through B’s estate to B’s successors in interest, who would become entitled to possession or enjoyment at A’s death.
Classification. Subsection (b) renders a future interest “contingent” on the beneficiary’s
The 120-hour Survivorship Period. In effect, the requirement of survival of the distribution date means survival of the 120-hour period following the distribution date. This is because, under Section 2-702(a), “an individual who is not established to have survived an event ...by 120 hours is deemed to have predeceased the event.” As made clear by subsection (a)(8), for the purposes of Section 2-707, the “event” to which Section 2-702(a) relates is the distribution date.
Note that the “distribution date” need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day, such as the time of death of an income beneficiary.
References in Section 2-707 and in this Comment to survival of the distribution date should be understood as referring to survival of the distribution date by 120 hours.
Ambiguous Survivorship Language. Subsection (b) serves another purpose. It resolves a frequently litigated question arising from ambiguous language of survivorship, such as in a trust, “income to A for life, remainder in corpus to my surviving children.” Although some case law interprets the word “surviving” as merely requiring survival of the testator (e.g., Nass’ Estate, 182 A. 401 (Pa. 1936)), the predominant position at common law interprets “surviving” as requiring survival of the life tenant, A. Hawke v. Lodge, 77 A. 1090 (Del. Ch. 1910); Restatement (Third) of Property: Wills and Other Donative Transfers §§ 15.3 cmt. f; 15.4 cmt. g (2008). The first sentence of subsection (b), in conjunction with paragraph (3), codifies the predominant common-law/Restatement position that survival relates to the distribution date.
The first sentence of subsection (b), in combination with paragraph (3), imposes a condition of survivorship to the distribution date (the time of possession or enjoyment) even when an express condition of survivorship to an earlier time has been imposed. Thus, in a trust like “income to A for life, remainder in corpus to B, but if B predeceases A, to B’s children who survive B,” the first sentence of subsection (b) combined with paragraph (3) requires B’s children to survive (by 120 hours) the death of the income beneficiary, A.
Rule of Construction. Note that Section 2-707 is a rule of construction. It is qualified by the rule set forth in Section 2-701, and thus it yields to a finding of a contrary intention. Consequently, in trusts like “income to A for life, remainder in corpus to B whether or not B survives A,” or “income to A for life, remainder in corpus to B or B’s estate,” this section would not apply and, should B predecease A, B’s future interest would pass through B’s estate to B’s successors in interest, who would become entitled to possession or enjoyment at A’s death.
Classification. Subsection (b) renders a future interest “contingent” on the beneficiary’s
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survival of the distribution date. As a result, future interests are “nonvested” and subject to the
Rule Against Perpetuities. To prevent an injustice from resulting because of this, the Uniform
Statutory Rule Against Perpetuities, which has a wait-and-see element, is incorporated into the
Code as Article II, Part 9.
Substitute Gifts. Section 2-707 not only imposes a condition of survivorship to the distribution date; like its antilapse counterparts, Sections 2-603 and 2-706, it provides substitute takers in cases of a beneficiary’s failure to survive the distribution date.
The statutory substitute gift is divided among the devisee’s descendants “by representation,” a phrase defined in Section 2-709(b). A technical amendment adopted in 2008 added subsection (a)(4), defining the term “descendants”.
Subsection (b)(1) – Future Interests Not in the Form of a Class Gift. Subsection (b)(1) applies to non-class gifts, such as the “income to A for life, remainder in corpus to B” trust discussed above. If B predeceases A, subsection (b)(1) creates a substitute gift with respect to B’s future interest; the substitute gift is to B’s descendants who survive A (by 120 hours).
Subsection (b)(2) – Class Gift Future Interests. Subsection (b)(2) applies to single- generation class gifts, such as in a trust “income to A for life, remainder in corpus to A’s children.” See Restatement (Third) of Property: Wills and Other Donative Transfers §§ 14.1, 14.2 (2008). Suppose that A had two children, X and Y. X predeceases A; Y survives A. Subsection (b)(2) creates a substitute gift with respect to any of A’s children who fail to survive A (by 120 hours) leaving descendants who survive A (by 120 hours). Thus, if X left descendants who survived A (by 120 hours), those descendants would take X’s share; if X left no descendants who survived A (by 120 hours), Y would take it all.
Subsection (b)(2) does not apply to future interests to multiple-generation classes such as “issue,” “descendants,” “heirs of the body,” “heirs,” “next of kin,” “distributees,” “relatives,” “family,” or the like. The reason is that these types of class gifts have their own internal systems of representation, and so the substitute gift provided by subsection (b)(1) would be out of place with respect to these types of future interests. See Restatement (Third) of Property: Wills and Other Donative Transfers §§ 14.3, 14.4, 15.3 (2008). The first sentence of subsection (a) and subsection (d) do apply, however. For example, suppose a nonresiduary devise “to A for life, remainder to A’s issue, by representation.” If A leaves issue surviving him (by 120 hours), they take. But if A leaves no issue surviving him (by 120 hours), the testator’s residuary devisees are the takers.
Subsection (b)(4). Subsection (b)(4), as clarified by technical amendment in 2008, provides that, if a governing instrument creates an alternative future interest with respect to a future interest for which a substitute gift is created by paragraph (1) or (2), the substitute gift is superseded by the alternative future interest if: (A) the alternative future interest is in the form of a class gift and one or more members of the class is entitled to take in possession or enjoyment; or (B) the alternative future interest is not in the form of a class gift and the expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment. Consider, for example, a trust under which the income is to be paid to A for life, remainder in
Substitute Gifts. Section 2-707 not only imposes a condition of survivorship to the distribution date; like its antilapse counterparts, Sections 2-603 and 2-706, it provides substitute takers in cases of a beneficiary’s failure to survive the distribution date.
The statutory substitute gift is divided among the devisee’s descendants “by representation,” a phrase defined in Section 2-709(b). A technical amendment adopted in 2008 added subsection (a)(4), defining the term “descendants”.
Subsection (b)(1) – Future Interests Not in the Form of a Class Gift. Subsection (b)(1) applies to non-class gifts, such as the “income to A for life, remainder in corpus to B” trust discussed above. If B predeceases A, subsection (b)(1) creates a substitute gift with respect to B’s future interest; the substitute gift is to B’s descendants who survive A (by 120 hours).
Subsection (b)(2) – Class Gift Future Interests. Subsection (b)(2) applies to single- generation class gifts, such as in a trust “income to A for life, remainder in corpus to A’s children.” See Restatement (Third) of Property: Wills and Other Donative Transfers §§ 14.1, 14.2 (2008). Suppose that A had two children, X and Y. X predeceases A; Y survives A. Subsection (b)(2) creates a substitute gift with respect to any of A’s children who fail to survive A (by 120 hours) leaving descendants who survive A (by 120 hours). Thus, if X left descendants who survived A (by 120 hours), those descendants would take X’s share; if X left no descendants who survived A (by 120 hours), Y would take it all.
Subsection (b)(2) does not apply to future interests to multiple-generation classes such as “issue,” “descendants,” “heirs of the body,” “heirs,” “next of kin,” “distributees,” “relatives,” “family,” or the like. The reason is that these types of class gifts have their own internal systems of representation, and so the substitute gift provided by subsection (b)(1) would be out of place with respect to these types of future interests. See Restatement (Third) of Property: Wills and Other Donative Transfers §§ 14.3, 14.4, 15.3 (2008). The first sentence of subsection (a) and subsection (d) do apply, however. For example, suppose a nonresiduary devise “to A for life, remainder to A’s issue, by representation.” If A leaves issue surviving him (by 120 hours), they take. But if A leaves no issue surviving him (by 120 hours), the testator’s residuary devisees are the takers.
Subsection (b)(4). Subsection (b)(4), as clarified by technical amendment in 2008, provides that, if a governing instrument creates an alternative future interest with respect to a future interest for which a substitute gift is created by paragraph (1) or (2), the substitute gift is superseded by the alternative future interest if: (A) the alternative future interest is in the form of a class gift and one or more members of the class is entitled to take in possession or enjoyment; or (B) the alternative future interest is not in the form of a class gift and the expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment. Consider, for example, a trust under which the income is to be paid to A for life, remainder in
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corpus to B if B survives A, but if not to C if C survives A. If B predeceases A, leaving
descendants who survive A (by 120 hours), subsection (b)(1) creates a substitute gift to those
descendants. But, if C survives A (by 120 hours), the alternative future interest in C supersedes
the substitute gift to B’s descendants. Upon A’s death, the trust corpus passes to C.
Subsection (c). Subsection (c) is necessary because there can be cases in which subsections (b)(1) or (2) create substitute gifts with respect to two or more alternative future interests, and those substitute gifts are not superseded under the terms of subsection (b)(4). Subsection (c) provides the tie-breaking mechanism for such situations.
The initial step is to determine which of the alternative future interests would take effect had all the beneficiaries themselves survived the distribution date (by 120 hours). In subsection (c), this future interest is called the “primary future interest.” Unless subsection (c)(2) applies, subsection (c)(1) provides that the property passes under substitute gift created with respect to the primary future interest. This substitute gift is called the “primary substitute gift.” Thus, the property goes to the descendants of the beneficiary or beneficiaries of the primary future interest.
Subsection (c)(2) provides an exception to this rule. Under subsection (c)(2), the property does not pass under the primary substitute gift if there is a “younger-generation future interest” – defined as a future interest that (i) is to a descendant of a beneficiary of the primary future interest, (ii) is an alternative future interest with respect to the primary future interest, (iii) is a future interest for which a substitute gift is created, and (iv) would have taken effect had all the deceased beneficiaries who left surviving descendants survived the distribution date except the deceased beneficiary or beneficiaries of the primary future interest. If there is a younger- generation future interest, the property passes under the “younger-generation substitute gift” – defined as the substitute gift created with respect to the younger-generation future interest.
Subsection (d). Since it is possible that, after the application of subsections (b) and (c), there are no substitute gifts, a back-stop set of substitute takers is provided in subsection (d) – the transferor’s residuary devisees or heirs. Note that the transferor’s residuary clause is treated as creating a future interest and, as such, is subject to this section. Note also that the meaning of the back-stop gift to the transferor’s heirs is governed by Section 2-711, under which the gift is to the transferor’s heirs determined as if the transferor died when A died. Thus there will always be a set of substitute takers, even if it turns out to be the state. If the transferor’s surviving spouse has remarried after the transferor’s death but before A’s death, he or she would not be a taker under this provision.
Examples. The application of Section 2-707 is illustrated by the following examples. Note that, in each example, the “distribution date” is the time of the income beneficiary’s death. Assume, in each example, that an individual who is described as having “survived” the income beneficiary’s death survived the income beneficiary’s death by 120 hours or more.
Example 1. A nonresiduary devise in G’s will created a trust, income to A for life, remainder in corpus to B if B survives A. G devised the residue of her estate to a charity. B predeceased A. At A’s death, B’s child, X, is living.
Subsection (c). Subsection (c) is necessary because there can be cases in which subsections (b)(1) or (2) create substitute gifts with respect to two or more alternative future interests, and those substitute gifts are not superseded under the terms of subsection (b)(4). Subsection (c) provides the tie-breaking mechanism for such situations.
The initial step is to determine which of the alternative future interests would take effect had all the beneficiaries themselves survived the distribution date (by 120 hours). In subsection (c), this future interest is called the “primary future interest.” Unless subsection (c)(2) applies, subsection (c)(1) provides that the property passes under substitute gift created with respect to the primary future interest. This substitute gift is called the “primary substitute gift.” Thus, the property goes to the descendants of the beneficiary or beneficiaries of the primary future interest.
Subsection (c)(2) provides an exception to this rule. Under subsection (c)(2), the property does not pass under the primary substitute gift if there is a “younger-generation future interest” – defined as a future interest that (i) is to a descendant of a beneficiary of the primary future interest, (ii) is an alternative future interest with respect to the primary future interest, (iii) is a future interest for which a substitute gift is created, and (iv) would have taken effect had all the deceased beneficiaries who left surviving descendants survived the distribution date except the deceased beneficiary or beneficiaries of the primary future interest. If there is a younger- generation future interest, the property passes under the “younger-generation substitute gift” – defined as the substitute gift created with respect to the younger-generation future interest.
Subsection (d). Since it is possible that, after the application of subsections (b) and (c), there are no substitute gifts, a back-stop set of substitute takers is provided in subsection (d) – the transferor’s residuary devisees or heirs. Note that the transferor’s residuary clause is treated as creating a future interest and, as such, is subject to this section. Note also that the meaning of the back-stop gift to the transferor’s heirs is governed by Section 2-711, under which the gift is to the transferor’s heirs determined as if the transferor died when A died. Thus there will always be a set of substitute takers, even if it turns out to be the state. If the transferor’s surviving spouse has remarried after the transferor’s death but before A’s death, he or she would not be a taker under this provision.
Examples. The application of Section 2-707 is illustrated by the following examples. Note that, in each example, the “distribution date” is the time of the income beneficiary’s death. Assume, in each example, that an individual who is described as having “survived” the income beneficiary’s death survived the income beneficiary’s death by 120 hours or more.
Example 1. A nonresiduary devise in G’s will created a trust, income to A for life, remainder in corpus to B if B survives A. G devised the residue of her estate to a charity. B predeceased A. At A’s death, B’s child, X, is living.
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Solution: On A’s death, the trust property goes to X, not to the charity. Because B’s
future interest is not in the form of a class gift, subsection (b)(1) applies, not subsection (b)(2).
Subsection (b)(1) creates a substitute gift with respect to B’s future interest; the substitute gift is
to B’s child, X. Under subsection (b)(3), the words of survivorship attached to B’s future
interest (“to B if B survives A”) do not indicate an intent contrary to the creation of that
substitute gift. Nor, under subsection (b)(4), is that substitute gift superseded by an alternative
future interest because, as defined in subsection (a)(1), G’s residuary clause does not create an
alternative future interest. In the normal lapse situation, a residuary clause does not supersede
the substitute gift created by the antilapse statute, and the same analysis applies to this situation
as well.
Example 2. Same as Example 1, except that B left no descendants who survived A.
Solution: Subsection (b)(1) does not create a substitute gift with respect to B’s future interest because B left no descendants who survived A. This brings subsection (d) into operation, under which the trust property passes to the charity under G’s residuary clause.
Example 3. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B if B survives A. B predeceased A. At A’s death, G and X, B’s child, are living.
Solution: X takes the trust property. Because B’s future interest is not in the form of a class gift, subsection (b)(1) applies, not subsection (b)(2). Subsection (b)(1) creates a substitute gift with respect to B’s future interest; the substitute gift is to B’s child, X. Under subsection (b)(3), the words of survivorship (“to B if B survives A”) do not indicate an intent contrary to the creation of that substitute gift. Nor, under subsection (b)(4), is the substitute gift superseded by an alternative future interest; G’s reversion is not an alternative future interest as defined in subsection (a)(1) because it was not expressly created.
Example 4. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B if B survives A; if not, to C. B predeceased A. At A’s death, C and B’s child are living.
Solution: C takes the trust property. Because B’s future interest is not in the form of a class gift, subsection (b)(1) applies, not subsection (b)(2). Subsection (b)(1) creates a substitute gift with respect to B’s future interest; the substitute gift is to B’s child, X. Under subsection (b)(3), the words of survivorship (“to B if B survives A”) do not indicate an intent contrary to the creation of that substitute gift. But, under subsection (b)(4), the substitute gift to B’s child is superseded by the alternative future interest held by C because C, having survived A (by 120 hours), is entitled to take in possession or enjoyment.
Example 5. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B, but if B predeceases A, to the person B appoints by will. B predeceased A. B’s will exercised his power of appointment in favor of C. C survives A. B’s child, X, also survives A.
Solution: B’s appointee, C, takes the trust property, not B’s child, X. Because B’s future interest is not in the form of a class gift, subsection (b)(1) applies, not subsection (b)(2).
Example 2. Same as Example 1, except that B left no descendants who survived A.
Solution: Subsection (b)(1) does not create a substitute gift with respect to B’s future interest because B left no descendants who survived A. This brings subsection (d) into operation, under which the trust property passes to the charity under G’s residuary clause.
Example 3. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B if B survives A. B predeceased A. At A’s death, G and X, B’s child, are living.
Solution: X takes the trust property. Because B’s future interest is not in the form of a class gift, subsection (b)(1) applies, not subsection (b)(2). Subsection (b)(1) creates a substitute gift with respect to B’s future interest; the substitute gift is to B’s child, X. Under subsection (b)(3), the words of survivorship (“to B if B survives A”) do not indicate an intent contrary to the creation of that substitute gift. Nor, under subsection (b)(4), is the substitute gift superseded by an alternative future interest; G’s reversion is not an alternative future interest as defined in subsection (a)(1) because it was not expressly created.
Example 4. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B if B survives A; if not, to C. B predeceased A. At A’s death, C and B’s child are living.
Solution: C takes the trust property. Because B’s future interest is not in the form of a class gift, subsection (b)(1) applies, not subsection (b)(2). Subsection (b)(1) creates a substitute gift with respect to B’s future interest; the substitute gift is to B’s child, X. Under subsection (b)(3), the words of survivorship (“to B if B survives A”) do not indicate an intent contrary to the creation of that substitute gift. But, under subsection (b)(4), the substitute gift to B’s child is superseded by the alternative future interest held by C because C, having survived A (by 120 hours), is entitled to take in possession or enjoyment.
Example 5. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B, but if B predeceases A, to the person B appoints by will. B predeceased A. B’s will exercised his power of appointment in favor of C. C survives A. B’s child, X, also survives A.
Solution: B’s appointee, C, takes the trust property, not B’s child, X. Because B’s future interest is not in the form of a class gift, subsection (b)(1) applies, not subsection (b)(2).
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Subsection (b)(1) creates a substitute gift with respect to B’s future interest; the substitute gift is
to B’s child, X. Under subsection (b)(3), the words of survivorship (“to B if B survives A”) do
not indicate an intent contrary to the creation of that substitute gift. But, under subsection (b)(4),
the substitute gift to B’s child is superseded by the alternative future interest held by C because
C, having survived A (by 120 hours), is entitled to take in possession or enjoyment. Because C’s
future interest was created in “a” governing instrument (B’s will), it counts as an “alternative
future interest.”
Example 6. G creates an irrevocable inter-vivos trust, income to A for life, remainder in corpus to A’s children who survive A; if none, to B. A’s children predecease A, leaving descendants, X and Y, who survive A. B also survives A.
Solution: On A’s death, the trust property goes to B, not to X and Y. Because the future interest in A’s children is in the form of a class gift (see Restatement (Third) of Property: Wills and Other Donative Transfers § 13.1 (2008)), subsection (b)(2) applies, not subsection (b)(1). Subsection (b)(2) creates a substitute gift with respect to the future interest in A’s children; the substitute gift is to the descendants of A’s children, X and Y. Under subsection (b)(3), the words of survivorship (“to A’s children who survive A”) do not indicate an intent contrary to the creation of that substitute gift. But, under subsection (b)(4), the alternative future interest to B supersedes the substitute gift to the descendants of A’s children because B survived A.
Alternative Facts: One of A’s children, J, survives A; A’s other child, K, predeceases A, leaving descendants, X and Y, who survive A. B also survives A.
Solution: J takes half the trust property and X and Y split the other half. Although there is an alternative future interest (in B) and although B did survive A, the alternative future interest was conditioned on none of A’s children surviving A. Because that condition was not satisfied, the expressly designated beneficiary of that alternative future interest, B, is not entitled to take in possession or enjoyment. Thus, the alternative future interest in B does not supersede the substitute gift to K’s descendants, X and Y.
Example 7. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B if B survives A; if not, to C. B and C predecease A. At A’s death, B’s child and C’s child are living.
Solution: Subsection (b)(1) produces substitute gifts with respect to B’s future interest and with respect to C’s future interest. B’s future interest and C’s future interest are alternative future interests, one to the other. B’s future interest is expressly conditioned on B’s surviving A. C’s future interest is conditioned on B’s predeceasing A and C’s surviving A. The condition that C survive A does not arise from express language in G’s trust but from the first sentence of subsection (b); that sentence makes C’s future interest contingent on C’s surviving A. Thus, because neither B nor C survived A, neither B nor C is entitled to take in possession or enjoyment. So, under subsection (b)(4), neither substitute gift, created with respect to the future interests in B and C, is superseded by an alternative future interest. Consequently, resort must be had to subsection (c) to break the tie to determine which substitute gift takes effect.
Example 6. G creates an irrevocable inter-vivos trust, income to A for life, remainder in corpus to A’s children who survive A; if none, to B. A’s children predecease A, leaving descendants, X and Y, who survive A. B also survives A.
Solution: On A’s death, the trust property goes to B, not to X and Y. Because the future interest in A’s children is in the form of a class gift (see Restatement (Third) of Property: Wills and Other Donative Transfers § 13.1 (2008)), subsection (b)(2) applies, not subsection (b)(1). Subsection (b)(2) creates a substitute gift with respect to the future interest in A’s children; the substitute gift is to the descendants of A’s children, X and Y. Under subsection (b)(3), the words of survivorship (“to A’s children who survive A”) do not indicate an intent contrary to the creation of that substitute gift. But, under subsection (b)(4), the alternative future interest to B supersedes the substitute gift to the descendants of A’s children because B survived A.
Alternative Facts: One of A’s children, J, survives A; A’s other child, K, predeceases A, leaving descendants, X and Y, who survive A. B also survives A.
Solution: J takes half the trust property and X and Y split the other half. Although there is an alternative future interest (in B) and although B did survive A, the alternative future interest was conditioned on none of A’s children surviving A. Because that condition was not satisfied, the expressly designated beneficiary of that alternative future interest, B, is not entitled to take in possession or enjoyment. Thus, the alternative future interest in B does not supersede the substitute gift to K’s descendants, X and Y.
Example 7. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to B if B survives A; if not, to C. B and C predecease A. At A’s death, B’s child and C’s child are living.
Solution: Subsection (b)(1) produces substitute gifts with respect to B’s future interest and with respect to C’s future interest. B’s future interest and C’s future interest are alternative future interests, one to the other. B’s future interest is expressly conditioned on B’s surviving A. C’s future interest is conditioned on B’s predeceasing A and C’s surviving A. The condition that C survive A does not arise from express language in G’s trust but from the first sentence of subsection (b); that sentence makes C’s future interest contingent on C’s surviving A. Thus, because neither B nor C survived A, neither B nor C is entitled to take in possession or enjoyment. So, under subsection (b)(4), neither substitute gift, created with respect to the future interests in B and C, is superseded by an alternative future interest. Consequently, resort must be had to subsection (c) to break the tie to determine which substitute gift takes effect.
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Under subsection (c), B is the beneficiary of the “primary future interest” because B
would have been entitled to the trust property had both B and C survived A. Unless subsection
(c)(2) applies, the trust property passes to B’s child as the taker under the “primary substitute
gift.”
Subsection (c)(2) would only apply if C’s future interest qualifies as a “younger- generation future interest.” This depends upon whether C is a descendant of B, for C’s future interest satisfies the other requirements necessary to make it a younger-generation future interest. If C was a descendant of B, the substitute gift to C’s child would be a “younger-generation substitute gift” and would become effective instead of the “primary substitute gift” to B’s descendants. But if C was not a descendant of B, the property would pass under the “primary substitute gift” to B’s descendants.
Example 8. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to A’s children who survive A; if none, to B. All of A’s children predecease A. X and Y, who are descendants of one or more of A’s children, survive A. B predeceases A, leaving descendants, M and N, who survive A.
Solution: On A’s death, the trust property passes to X and Y under the “primary substitute gift,” unless B was a descendant of any of A’s children.
Subsection (b)(2) produces substitute gifts with respect to A’s children who predeceased A leaving descendants who survived A. Subsection (b)(1) creates a substitute gift with respect to B’s future interest. A’s children’s future interest and B’s future interest are alternative future interests, one to the other. A’s children’s future interest is expressly conditioned on surviving A. B’s future interest is conditioned on none of A’s children surviving A and on B’s surviving A. The condition of survivorship as to B’s future interest does not arise because of express language in G’s trust but because of the first sentence of subsection (b); that sentence makes B’s future interest contingent on B’s surviving A. Thus, because none of A’s children survived A, and because B did not survive A, none of A’s children nor B is entitled to take in possession or enjoyment. So, under subsection (b)(4), neither substitute gift – i.e., neither the one created with respect to the future interest in A’s children nor the one created with respect to the future interest in B – is superseded by an alternative future interest. Consequently, resort must be had to subsection (c) to break the tie to determine which substitute gift takes effect.
Under subsection (c), A’s children are the beneficiaries of the “primary future interest” because they would have been entitled to the trust property had all of them and B survived A. Unless subsection (c)(2) applies, the trust property passes to X and Y as the takers under the “primary substitute gift.” Subsection (c)(2) would only apply if B’s future interest qualifies as a “younger-generation future interest.” This depends upon whether B is a descendant of any of A’s children, for B’s future interest satisfies the other requirements necessary to make it a “younger- generation future interest.” If B was a descendant of one of A’s children, the substitute gift to B’s children, M and N, would be a “younger-generation substitute gift” and would become effective instead of the “primary substitute gift” to X and Y. But if B was not a descendant of any of A’s children, the property would pass under the “primary substitute gift” to X and Y.
Subsection (c)(2) would only apply if C’s future interest qualifies as a “younger- generation future interest.” This depends upon whether C is a descendant of B, for C’s future interest satisfies the other requirements necessary to make it a younger-generation future interest. If C was a descendant of B, the substitute gift to C’s child would be a “younger-generation substitute gift” and would become effective instead of the “primary substitute gift” to B’s descendants. But if C was not a descendant of B, the property would pass under the “primary substitute gift” to B’s descendants.
Example 8. G created an irrevocable inter-vivos trust, income to A for life, remainder in corpus to A’s children who survive A; if none, to B. All of A’s children predecease A. X and Y, who are descendants of one or more of A’s children, survive A. B predeceases A, leaving descendants, M and N, who survive A.
Solution: On A’s death, the trust property passes to X and Y under the “primary substitute gift,” unless B was a descendant of any of A’s children.
Subsection (b)(2) produces substitute gifts with respect to A’s children who predeceased A leaving descendants who survived A. Subsection (b)(1) creates a substitute gift with respect to B’s future interest. A’s children’s future interest and B’s future interest are alternative future interests, one to the other. A’s children’s future interest is expressly conditioned on surviving A. B’s future interest is conditioned on none of A’s children surviving A and on B’s surviving A. The condition of survivorship as to B’s future interest does not arise because of express language in G’s trust but because of the first sentence of subsection (b); that sentence makes B’s future interest contingent on B’s surviving A. Thus, because none of A’s children survived A, and because B did not survive A, none of A’s children nor B is entitled to take in possession or enjoyment. So, under subsection (b)(4), neither substitute gift – i.e., neither the one created with respect to the future interest in A’s children nor the one created with respect to the future interest in B – is superseded by an alternative future interest. Consequently, resort must be had to subsection (c) to break the tie to determine which substitute gift takes effect.
Under subsection (c), A’s children are the beneficiaries of the “primary future interest” because they would have been entitled to the trust property had all of them and B survived A. Unless subsection (c)(2) applies, the trust property passes to X and Y as the takers under the “primary substitute gift.” Subsection (c)(2) would only apply if B’s future interest qualifies as a “younger-generation future interest.” This depends upon whether B is a descendant of any of A’s children, for B’s future interest satisfies the other requirements necessary to make it a “younger- generation future interest.” If B was a descendant of one of A’s children, the substitute gift to B’s children, M and N, would be a “younger-generation substitute gift” and would become effective instead of the “primary substitute gift” to X and Y. But if B was not a descendant of any of A’s children, the property would pass under the “primary substitute gift” to X and Y.
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Example 9. G’s will devised property in trust, income to niece Lilly for life, corpus on
Lilly’s death to her children; should Lilly die without leaving children, the corpus shall be
equally divided among my nephews and nieces then living, the child or children of nieces who
may be deceased to take the share their mother would have been entitled to if living.
Lilly never had any children. G had 3 nephews and 2 nieces in addition to Lilly. All 3 nephews and both nieces predeceased Lilly. A child of one of the nephews survived Lilly. One of the nieces had 8 children, 7 of whom survived Lilly. The other niece had one child, who did not survive Lilly. (This example is based on the facts of Bomberger’s Estate, 32 A.2d 729 (Pa.1943).)
Solution: The trust property goes to the 7 children of the nieces who survived Lilly. The substitute gifts created by subsection (b)(2) to the nephew’s son or to the nieces’ children are superseded under subsection (b)(4) because there is an alternative future interest (the “child or children of nieces who may be deceased”) and expressly designated beneficiaries of that alternative future interest (the 7 children of the nieces) are living at Lilly’s death and are entitled to take in possession or enjoyment.
Example 10. G devised the residue of his estate in trust, income to his wife, W, for life, remainder in corpus to their children, John and Florence; if either John or Florence should predecease W, leaving descendants, such descendants shall take the share their parent would have taken if living.
G’s son, John, survived W. G’s daughter, Florence, predeceased W. Florence never had any children. Florence’s husband survived W. (This example is based on the facts of Matter of Kroos, 99 N.E.2d 222 (N.Y.1951).)
Solution: John, of course, takes his half of the trust property. Because Florence left no descendants who survived W, subsection (b)(1) does not create a substitute gift with respect to Florence’s future interest in her half. Subsection (d)(1) is inapplicable because G’s trust was not created in a nonresiduary devise or in a codicil to G’s will. Subsection (d)(2) therefore becomes applicable, under which Florence’s half goes to G’s heirs determined as if G died when W died, i.e., John. See Section 2-711.
Subsection (e). Subsection (e) was added in 1993 to clarify the passing of the property in cases in which the future interest is created by the exercise of a power of appointment.
Technical Amendments. Technical amendments in 2008 added a definition of “descendants” as used in subsections (b)(1) and (2) and clarified subsection (b)(4). The new definition resolves questions of status previously unanswered. The technical amendment of subsection (b)(4) makes that subsection easier to understand but does not change its substance.
Reference. This section is discussed in Halbach & Waggoner, “The UPC’s New Survivorship and Antilapse Provisions”, 55 Alb. L. Rev. 1091 (1992).
Historical Note. This Comment was revised in 1993 and 2008.
Lilly never had any children. G had 3 nephews and 2 nieces in addition to Lilly. All 3 nephews and both nieces predeceased Lilly. A child of one of the nephews survived Lilly. One of the nieces had 8 children, 7 of whom survived Lilly. The other niece had one child, who did not survive Lilly. (This example is based on the facts of Bomberger’s Estate, 32 A.2d 729 (Pa.1943).)
Solution: The trust property goes to the 7 children of the nieces who survived Lilly. The substitute gifts created by subsection (b)(2) to the nephew’s son or to the nieces’ children are superseded under subsection (b)(4) because there is an alternative future interest (the “child or children of nieces who may be deceased”) and expressly designated beneficiaries of that alternative future interest (the 7 children of the nieces) are living at Lilly’s death and are entitled to take in possession or enjoyment.
Example 10. G devised the residue of his estate in trust, income to his wife, W, for life, remainder in corpus to their children, John and Florence; if either John or Florence should predecease W, leaving descendants, such descendants shall take the share their parent would have taken if living.
G’s son, John, survived W. G’s daughter, Florence, predeceased W. Florence never had any children. Florence’s husband survived W. (This example is based on the facts of Matter of Kroos, 99 N.E.2d 222 (N.Y.1951).)
Solution: John, of course, takes his half of the trust property. Because Florence left no descendants who survived W, subsection (b)(1) does not create a substitute gift with respect to Florence’s future interest in her half. Subsection (d)(1) is inapplicable because G’s trust was not created in a nonresiduary devise or in a codicil to G’s will. Subsection (d)(2) therefore becomes applicable, under which Florence’s half goes to G’s heirs determined as if G died when W died, i.e., John. See Section 2-711.
Subsection (e). Subsection (e) was added in 1993 to clarify the passing of the property in cases in which the future interest is created by the exercise of a power of appointment.
Technical Amendments. Technical amendments in 2008 added a definition of “descendants” as used in subsections (b)(1) and (2) and clarified subsection (b)(4). The new definition resolves questions of status previously unanswered. The technical amendment of subsection (b)(4) makes that subsection easier to understand but does not change its substance.
Reference. This section is discussed in Halbach & Waggoner, “The UPC’s New Survivorship and Antilapse Provisions”, 55 Alb. L. Rev. 1091 (1992).
Historical Note. This Comment was revised in 1993 and 2008.
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