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If you live in Texas, you may have heard of the anti-lapse statute. This law is designed to protect the property rights of beneficiaries who are named in a will. Under the statute, if a beneficiary dies before the will-maker, their interest in the estate will not lapse. Instead, their interest will go to their descendants. This may seem like a simple law, but it can have far-reaching implications. In this blog post, we will explore what the anti-lapse statute is and how it can affect your rights as a beneficiary.

What is the Anti-Lapse Statute?

The anti-lapse statute is a Texas probate law that protects the rights of certain beneficiaries who would otherwise be entitled to inherit from an estate, but who predecease the decedent. Under the statute, if a beneficiary dies before the decedent, the beneficiary’s interest in the estate passes to his or her descendants, if any. If there are no descendants, then the interest passes to the other beneficiaries of the estate. The purpose of the statute is to prevent lapse of inheritance rights due to death of a beneficiary.

What is the purpose of the Anti-Lapse Statute?

The purpose of the Anti-Lapse Statute is to ensure that a person’s intended gift to a beneficiary is not lost due to the beneficiary’s death before the person. Under the statute, if a beneficiary predeceases the person, the gift will instead go to the beneficiary’s descendants.

How does the Anti-Lapse Statute work?

The Anti-Lapse Statute is a law that protects the interests of beneficiaries of a will or trust from being forfeited if the beneficiary dies before the testator. The statute allows for the substitution of another person in the place of the deceased beneficiary, so long as that person is related to the original beneficiary by blood or marriage. The statute ensures that beneficiaries cannot be cut out of a will or trust simply because they die before the testator.

What are the exceptions to the Anti-Lapse Statute?

There are four exceptions to the anti-lapse statute under Texas probate law. The first exception is if the decedent leaves a will that expressly provides for lapsed gifts. The second exception is if the decedent has children who are also descendants of the recipient of the lapsed gift. The third exception is if the intended recipient of the lapsed gift is also the executor or administrator of the decedent’s estate. The fourth and final exception is if the lapse occurs because the intended recipient predeceases the decedent.

Texas Case Law: Beneficiary Laws and Residuary Devise

In Texas, the anti-lapse statute applies to beneficiary laws and residuary devise. If a person dies without having appointed a successor beneficiary, the property will go to the residuary devisee. If there is no residuary devisee, the property will go to the decedent’s estate.

Rossi v. Rossi, 448 S.W.2d 162 (Tex. Civ. App — Houston [14th Dist] 1969, writ re’d n.r.e.)

Anti-lapse statute

A statute that prevents a share of an estate from lapsing into the residuary estate.

Facts and Procedural History

E. A. Rosie was married three times. He had three children from his first marriage, Jean, Evalyn, and Rene. Evalyn is the only one surviving of the three. Rene left one son, Ronald. His second marriage had no children. His third marriage resulted in one child, Jan Adrian, who is a minor and is therefore represented by her mother, Beatrice Rossi.

E. A.’s will provided that his estate be divided 3/8ths to Evalyn, 3/8ths to Jan, 1/4th to Rene. He created a trust that terminates when Evalyn turns 35 years old. He made his wife, Beatrice, trustee and independent executrix.

In one section of E. A.’s will, he wrote that if Rene were to die before him, he wanted Jan and Evalyn to take his part in equal shares. Ronald brought suit against Jan and Evalyn claiming that he was entitled to his father’s share of the estate. He claimed that since E. A. Made his will over seven years before his father died, the anti-lapse statute applied. The daughters contended that the will was clear and that his intention was for Rene’s gift to go to them. The trial court held that Ronald take nothing and everything goes to the daughters. Ronald appealed.

The appellate court held that the anti-lapse statute is not intended to take effect if the will provides the proper beneficiaries if a beneficiary predeceases the testator. It only takes effect if a beneficiary predeceases a testator and the will does not provide how to distribute the property. It also held that the testator was clear on his intentions and that the court should not look elsewhere if the will is unambiguous. The will also specifically provided that if one of the daughters predeceases him, then their share should go to their children. This is the opposite of what the testator said about Rene’s share. This shows that the testator intentionally chose to not include Ronald. Lastly, the court held that the will speaks for the time of the testator’s death, not from the time the will was executed. Therefore, Ronald takes nothing and Rene’s shares go to Jan and Evalyn.

Main Consideration

Does the anti-lapse statute still apply if the testator provides how the property should be distributed if one of his beneficiaries predeceases him?

No. The anti-lapse statute should only apply if a beneficiary predeceases the testator and the will is silent on how to distribute their share.


Rossi v. Rossi shows that the anti-lapse statute does not apply if the testator provides how to distribute the property of a predeceased beneficiary in his will.


The anti-lapse statute under Texas probate law protects your loved ones from losing their inheritance if you die before distributing your assets. This statute ensures that your beneficiaries will still receive their share of your estate, even if you don’t have a will in place. While the anti-lapse statute provides some peace of mind, it’s still important to create a valid will to ensure that your assets are distributed according to your wishes.

Do you need an Experienced Probate Attorney to help?

If you are the executor or administrator of an estate, you may be wondering if you need to hire a probate attorney. The answer to this question depends on a number of factors, including the size and complexity of the estate, the laws of the state in which the estate is being probated, and your own personal level of comfort with handling legal matters.

While it is possible to probate an estate without an attorney, it is often advisable to hire one, especially if the estate is large or complex. An experienced probate attorney can help you navigate the legal process, ensure that all paperwork is properly filed, and represent you in court if necessary.

Can you probate an estate after 4 years in Texas?

In Texas, the anti-lapse statute applies to testamentary gifts that are not otherwise properly disposed of by the terms of the will. The statute provides that if a testator fails to provide in his or her will for a gift to lapse, the gift will not lapse and instead will be distributed as if the testator had died intestate.

What is a lapse beneficiary?

A lapse beneficiary is someone who is named in a will or trust to receive property, but who does not end up receiving the property because they die before the person who made the will or trust (the “grantor”). The property then goes to the next named beneficiary.

What is the purpose of an anti-lapse statute?

The statute prevents gifts from lapsing if the intended beneficiary dies before the gift giver. This means that if you leave a gift to someone in your will and they die before you do, the gift will not be lost – it will go to their estate instead.

Who inherits if a beneficiary dies before the testator?

If a beneficiary dies before the testator, their heirs will inherit their share of the estate. This is known as the anti-lapse statute. If a beneficiary is not survived by any heirs, their share will go to the residuary beneficiaries.

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