Lorenzo v. Medina, — So.3d —-, 2010 WL 4483470 (Fla. 3d DCA Nov 10, 2010)

At common law, lapse occurs when the beneficiary or the “devisee” under a will predeceases the testator, invalidating the gift. The gift would instead revert to the residuary estate or be granted under the law of intestate succession. Florida enacted F.S. 732.603, an anti-lapse statute, to ameliorate the potentially harsh effects of this common law rule. Rather than lapsing, gifts covered by the statute go to a pre-deceased beneficiary’s descendants.

Florida’s anti-lapse statute does not fix all lapsed gifts, only those made to immediate family members. Gifts to neighbors, friends, and in-laws do not benefit from this statute.

At issue in the linked-to case was a gift to the testatrix’s sister-in-law, Juana R. Medina, who had predeceased the testatrix. The trial court ruled the sister-in-law’s gift was saved by F.S. 732.603, thus resulting in her 50% share of the estate going to her children, the testatrix’s niece and nephew. This may have seemed like an equitable outcome, but it failed as a matter of law. Gifts to in-laws are NOT saved by Florida’s anti-lapse statute.

As a matter of common law, when a will provides for a bequest to a person who predeceases the testator, the gift lapses. Tubbs v. Teeple, 388 So.2d 239, 239 (Fla. 2d DCA 1980) (“When a legatee under a will predeceases the benefactor, the gift lapses.”). The potentially harsh effects of this common law rule are ameliorated to an extent by the operation of statute. When the predeceased devisee is a descendant of the testator’s grandparents, section 732.603 will “save” the lapsed gift by creating a substitute gift in the devisee’s descendants. § 732.603(1). Because section 732.603 is in derogation of the common law, we must strictly construe its provisions. Drafts v. Drafts, 114 So.2d 473, 476 (Fla. 1st DCA 1959) (“The antilapse statute being directly in derogation of … the common law, the statute must be strictly construed.”).


Pursuant to the common law rule outlined above, the bequest lapsed. And because Juana R. Medina is not a descendant of the Testator’s grandparents, the niece and nephew cannot invoke the operation of section 732.603(1) to “save” the bequest and provide them with a substitute gift. Thus, we conclude that the niece and nephew are not entitled to the Testator’s lapsed bequest. Accordingly, we reverse the order under review.