14-2603

14-2603. Substitute gifts; class gifts;
definitions

A. If a devisee fails to survive the testator and is a grandparent, a descendant of
a grandparent or a stepchild of either the testator or the donor of a power of
appointment exercised by the testator's will, the following apply:

1. Except as provided in paragraph 3 of this subsection, if the devise is not in
the form of a class gift and the deceased devisee leaves surviving descendants, a
substitute gift is created in the devisee's surviving descendants and they take, by
representation, the property to which the devisee would have been entitled if the devisee
had survived the testator.

2. Except as provided in paragraph 3 of this subsection, if the devise is in the
form of a class gift, other than a devise to issue, descendants, heirs of the body,
heirs, next of kin, relatives or family or a class described by similar language, a
substitute gift is created in the surviving descendants of the deceased devisee. The
property to which the devisees would have been entitled if all of them had survived the
testator passes to the surviving devisees and the surviving descendants of the deceased
devisees. Each surviving devisee takes the share to which that person would have been
entitled if the deceased devisees had survived the testator. Each deceased devisee's
surviving descendants who are substituted for the deceased devisee take by representation
the share to which the deceased devisee would have been entitled if the deceased devisee
had survived the testator. For the purposes of this paragraph, "deceased devisee" means
a class member who failed to survive the testator and left one or more surviving
descendants.

3. If the will creates an alternative devise with respect to a devise for which a
substitute gift is created by paragraph 1 or 2 of this subsection, the substitute gift is
superseded by the alternative devise, whether or not an expressly designated devisee of
the alternative devise is entitled to take under the will.

B. Unless the language that creates a power of appointment expressly prohibits the
substitution of the appointee's descendants for the appointee, a surviving descendant of
a deceased appointee can be substituted for the appointee, whether or not the descendant
is an object of the power of appointment.

C. For the purposes of section 14-2601, words of survivorship, such as in a devise
to an individual "if he survives me", or in a devise to "my surviving children", are, in
the absence of clear and convincing evidence to the contrary, a sufficient indication of
an intent contrary to the application of this section.

D. For the purposes of this section:

1. "Alternative devise" means a devise that is expressly created by the will and
under the terms of the will can take effect instead of another devise on the happening of
one or more events, including the survival of the testator or the failure to survive the
testator, whether an event is expressed in condition-precedent, condition-subsequent or
any other form. A residuary clause may constitute an alternative devise with respect to
a nonresiduary devise, whether or not the will specifically provides that, on lapse or
failure, the nonresiduary devise or nonresiduary devises in general pass under the
residuary clause.

2. "Class member" includes a person who fails to survive the testator but who would
have taken under a devise in the form of a class gift if that person had survived the
testator.

3. "Devise" includes an alternative devise, a devise in the form of a class gift
and an exercise of a power of appointment.

4. "Devisee" includes:

(a) A class member if the devise is in the form of a class gift.

(b) A person or class member who was deceased at the time the testator executed the
will as well as a person or class member who was then living but who failed to survive
the testator.

(c) An appointee under a power of appointment exercised by the testator's will.

5. "Stepchild" means a child of the surviving, deceased or former spouse of the
testator or of the donor of a power of appointment and not of the testator or donor.

6. "Surviving devisee" or "surviving descendant" means a devisee or a descendant
who neither predeceased the testator nor is deemed to have predeceased the testator under
section 14-2702.

7. "Testator" includes the donee of a power of appointment if the power is
exercised in the testator's will.