UBE Will Construction and Lapse
Last updated: May 2, 2026
Will Construction and Lapse questions are one of the highest-leverage areas to study for the UBE. This guide breaks down the rule, the elements you need to recognize, the named traps that catch most students, and a memory aid that scales to test day. Read it once, then practice the same sub-topic adaptively in the app.
The rule
At common law, a devise to a beneficiary who predeceases the testator lapses and falls into the residue (or, if the lapsed gift was itself residuary, passes by intestacy under the no-residue-of-a-residue rule). Every U.S. jurisdiction now has an anti-lapse statute that overrides this default by substituting the deceased beneficiary's descendants when the beneficiary is within a statutorily protected class of relatives. Under the Uniform Probate Code (UPC §2-603), the protected class is the testator's grandparents, descendants of the testator's grandparents, and stepchildren; the substituted takers are the predeceased beneficiary's surviving descendants, taking by representation. The UPC also reverses the common-law no-residue-of-a-residue rule (UPC §2-604(b)): a lapsed share of a residuary gift passes to the other residuary takers, not by intestacy.
Elements breakdown
Common-Law Lapse
A gift to a beneficiary who dies before the testator fails and is redirected by default rules.
- Beneficiary predeceases testator
- No contrary provision in will
- Beneficiary not saved by anti-lapse statute
Common examples:
- Specific or general devise falls into residue
- Residuary devise passes by intestacy under no-residue-of-a-residue rule
Anti-Lapse Statute (UPC §2-603)
A predeceased beneficiary's surviving descendants are substituted for the beneficiary if the beneficiary is within the protected class of relatives.
- Devisee predeceased testator (or treated as predeceased)
- Devisee was grandparent, descendant of grandparent, or stepchild of testator
- Devisee left surviving descendants
- Will contains no contrary intent
- Substituted takers take by representation
Common examples:
- Devise to testator's sister who predeceases — sister's children take
- Devise to testator's child who predeceases — grandchildren take by representation
- Devise to testator's stepchild who predeceases — stepchild's children take under UPC
Words of Survivorship and Contrary Intent
Express survivorship language may or may not defeat anti-lapse depending on jurisdiction.
- Will language requires beneficiary to survive testator
- Court determines whether language shows contrary intent
- UPC §2-603(b)(3): bare survivorship words alone are NOT sufficient contrary intent
- Majority non-UPC view: 'if she survives me' defeats anti-lapse
Common examples:
- 'To my brother Marcus, if he survives me' — defeats anti-lapse in majority non-UPC states; not in UPC states without more
- 'To my brother Marcus' with no survivorship language — anti-lapse applies
Class Gifts
A gift to a group described collectively in which surviving members take the share of any class member who predeceases, unless anti-lapse intervenes.
- Beneficiaries described as a group (not by name)
- Group is subject to fluctuation in number
- Testator's intent to benefit the class as a unit
- Surviving class members divide the share by default
- Anti-lapse statute trumps class-gift rule when statute applies
Common examples:
- 'To my nieces and nephews' — surviving nieces/nephews take, but UPC anti-lapse substitutes deceased niece's descendants
- 'To my children, A, B, and C' — courts split on whether named-and-numbered makes it a non-class gift
Residue-of-the-Residue Rule
Allocation of a lapsed residuary share between remaining residuary takers and intestate heirs.
- Common law: lapsed residuary share passes by intestacy
- UPC §2-604(b): lapsed residuary share passes to surviving residuary devisees
- Rule applies only when anti-lapse does not save the gift
- Pro rata distribution among remaining residuary devisees
Common examples:
- Common law: 'residue to A and B'; B predeceases without descendants — B's half passes to testator's heirs at law
- UPC: same facts — B's half passes entirely to A
Void Gifts (Beneficiary Dead at Execution)
A gift to a person already dead when the will was executed is void rather than lapsed; anti-lapse and residue rules generally treat void gifts the same as lapsed gifts under modern statutes.
- Beneficiary dead when will executed
- No knowledge of death imputed to testator
- UPC and modern statutes treat void gifts identically to lapsed gifts
- Anti-lapse may still substitute the dead beneficiary's descendants
Common examples:
- Testator names deceased uncle unaware uncle died last year — anti-lapse substitutes uncle's descendants under UPC
Simultaneous Death and 120-Hour Rule
A beneficiary who fails to survive the testator by 120 hours is treated as having predeceased.
- Beneficiary's survival not established by clear and convincing evidence by 120 hours
- Treated as predeceased for distribution purposes
- Anti-lapse may then apply if beneficiary is within protected class
- Will may override the 120-hour rule with explicit language
Common examples:
- Testator and brother die in same crash; brother's death within 120 hours triggers anti-lapse to brother's children
Common patterns and traps
The Wrong-Relative Anti-Lapse Trap
The fact pattern features a predeceased beneficiary who is sympathetic (a best friend, longtime partner, or even a spouse) and an answer choice substitutes that beneficiary's descendants under anti-lapse. The trap exploits candidates' instinct that anti-lapse is broadly remedial. In fact, anti-lapse is keyed to a narrow statutorily-defined class of relatives. Spouses are deliberately excluded under the UPC because they typically have their own elective-share and intestacy protections.
'The gift passes to the friend's children under the anti-lapse statute' — wrong because the friend is outside the UPC protected class.
The Bare-Survivorship Words UPC Pivot
The will uses minimal survivorship language like 'if she survives me' or 'my surviving brother.' The trap is to treat that language as automatic contrary intent that defeats anti-lapse. Under UPC §2-603(b)(3) such bare words are NOT sufficient — the drafter must expressly disclaim anti-lapse or provide an alternate taker. Under the majority non-UPC common-law view, however, those same words generally do show contrary intent. Watch the call to see which framework governs.
'The gift lapses because the will required survivorship' — correct in non-UPC states, wrong under UPC §2-603.
The Common-Law-vs-UPC Residue Cut
A residuary devise to two or more named takers, one of whom predeceases without descendants (or outside the protected class). Under the common-law no-residue-of-a-residue rule, the lapsed share escapes the residue and passes by intestacy. UPC §2-604(b) reverses this and keeps the share inside the residue. The trap is choosing the wrong default; the call usually flags the framework with phrases like 'in a UPC jurisdiction' or 'under the common law.'
'The lapsed residuary share passes to the testator's heirs at law' — correct at common law, wrong under UPC.
The Class-Gift-vs-Named-Devise Misclassification
A devise like 'to my children, Aiko, Bao, and Cassie' looks both like a class gift (children) and a list of named individuals. Whether the gift is treated as a class gift affects whether the surviving takers absorb a deceased member's share. When anti-lapse applies, classification becomes less critical because the deceased's descendants step in. When anti-lapse does NOT apply (no surviving descendants, or beneficiary outside protected class), classification controls.
'The deceased child's share lapses entirely' — assumes named-and-numbered defeats class-gift treatment without considering anti-lapse first.
The 120-Hour Survivorship Override
The fact pattern has a beneficiary who survives the testator by hours or a few days following a common accident. Candidates miss that under UPC §2-104 a beneficiary who fails to survive by 120 hours is treated as predeceased, which then triggers the anti-lapse and lapse cascade. The trap answer treats the brief survival as sufficient.
'The gift vests because the brother outlived the testator by two days' — wrong under the 120-hour rule.
How it works
Walk every will-construction question through a fixed sequence. First, ask whether the beneficiary actually predeceased the testator (or failed the 120-hour rule under UPC §2-104) — if not, the gift simply vests and lapse never enters the analysis. Second, identify the gift's category: specific, general, demonstrative, or residuary. Third, ask whether anti-lapse saves it: is the predeceased beneficiary within the protected class (UPC = grandparents, descendants of grandparents, stepchildren — friends and spouses are NOT protected), and did the beneficiary leave surviving descendants? Fourth, ask whether the will shows contrary intent. Under UPC §2-603(b)(3), bare 'if she survives me' language does not by itself defeat anti-lapse, but in non-UPC majority states it usually does. Fifth, only if anti-lapse fails do you reach the residue-of-the-residue question: UPC keeps the lapsed residuary share inside the residue; common law kicks it out to intestacy. Suppose Reyes leaves '$50,000 to my sister Ana, and the residue equally to my brothers Luis and Marcus.' Ana predeceases Reyes leaving a daughter; Marcus predeceases leaving no descendants. Anti-lapse saves Ana's $50,000 for her daughter. Marcus's residuary share passes entirely to Luis under the UPC, but half to Luis and half to Reyes's intestate heirs in a common-law jurisdiction.
Worked examples
How should Patel's estate be distributed?
- A Priya takes $40,000; Devraj's two sons split half the residue; Tomas takes half the residue.
- B Priya takes $40,000; Devraj's two sons take the entire residue; Tomas takes nothing. ✓ Correct
- C The $40,000 lapses to the residue; Devraj's two sons take half; the cousin takes half by intestacy.
- D Priya takes $40,000; Devraj's two sons split half the residue; the cousin takes half the residue by intestacy.
Why B is correct: Under UPC §2-603, anti-lapse saves Anika's $40,000 specific gift because Anika is the testator's sister (a descendant of Patel's grandparents) and left a surviving descendant; Priya takes by representation. Devraj's residuary share is also saved by anti-lapse — his sons take by representation. Marisol, however, is a friend, NOT within the UPC's protected class (grandparents, descendants of grandparents, stepchildren), so anti-lapse does not apply to her share. Under UPC §2-604(b), Marisol's lapsed residuary share passes to the surviving residuary devisees rather than by intestacy — meaning Devraj's substituted takers (his sons) absorb Marisol's half.
Why each wrong choice fails:
- A: This answer incorrectly applies anti-lapse to Marisol by passing her share to Tomas. Marisol is a friend, not a relative within the UPC's protected class, so her descendants are not substituted. (The Wrong-Relative Anti-Lapse Trap)
- C: This answer applies the common-law no-residue-of-a-residue rule and lets the cousin take by intestacy, but the question specifies a UPC jurisdiction. UPC §2-604(b) keeps a lapsed residuary share inside the residue. (The Common-Law-vs-UPC Residue Cut)
- D: This answer correctly handles the $40,000 and Devraj's share but defaults Marisol's half to intestacy. Under UPC §2-604(b), Marisol's lapsed share goes to the surviving residuary takers, not the cousin. (The Common-Law-vs-UPC Residue Cut)
Who takes the $100,000 gift?
- A Mei takes $100,000 because she is Wei's surviving descendant under the anti-lapse statute.
- B The $100,000 falls into the residue and passes to the foundation. ✓ Correct
- C Mei and the foundation split the $100,000 equally because the survivorship clause is ambiguous.
- D The $100,000 passes by intestacy because the residuary clause cannot absorb a lapsed specific gift.
Why B is correct: In the majority non-UPC common-law jurisdictions, the explicit phrase 'if he survives me' is treated as a sufficient expression of contrary intent that defeats the anti-lapse statute. Because anti-lapse is overridden, the gift to Wei lapses on his predecease. A lapsed specific or general gift falls into the residue under the standard rule, so the $100,000 passes to the residuary beneficiary — the foundation.
Why each wrong choice fails:
- A: This answer applies anti-lapse despite the survivorship language. Under the majority non-UPC view, 'if he survives me' shows contrary intent and defeats anti-lapse — only the UPC §2-603(b)(3) rule treats such bare words as insufficient. (The Bare-Survivorship Words UPC Pivot)
- C: There is no ambiguity to construe and no doctrine that splits a lapsed gift between the substituted taker and a residuary beneficiary. Either anti-lapse applies in full or it does not.
- D: A lapsed specific or general gift routinely falls into the residue at common law; the no-residue-of-a-residue rule applies only when the lapsed gift itself was residuary. The $100,000 was a general gift, not a residuary share. (The Common-Law-vs-UPC Residue Cut)
How should Reyes's estate be distributed?
- A Esteban, Camila's estate, and Diego each take one-third; Camila's estate then passes under her own will.
- B Esteban and Diego each take one-half; Camila's gift lapses because she did not survive Reyes by 120 hours.
- C Esteban and Diego each take one-third; Camila's two sons split the remaining one-third by representation. ✓ Correct
- D Esteban, Diego, and Camila's two sons each take one-fourth per capita.
Why C is correct: Under UPC §2-104, Camila is treated as having predeceased Reyes because she failed to survive by 120 hours (five days). That triggers the lapse cascade. UPC §2-603 anti-lapse applies because Camila is the testator's child (a descendant of the testator's grandparents) and left surviving descendants. Camila's two sons are substituted as the takers of her one-third share, taking by representation — meaning they split her one-third equally.
Why each wrong choice fails:
- A: This answer treats Camila as having survived Reyes despite the 120-hour rule. Under UPC §2-104 her three-day survival is insufficient, so her gift never vests in her estate. (The 120-Hour Survivorship Override)
- B: This answer correctly applies the 120-hour rule but then fails to apply anti-lapse. Camila is within the protected class and left surviving descendants, so her share does not lapse — it is substituted to her sons. (The 120-Hour Survivorship Override)
- D: This answer distributes per capita rather than by representation. Anti-lapse substitutes the deceased beneficiary's descendants into the deceased beneficiary's share — the sons take Camila's one-third (one-sixth each), not an equal one-fourth alongside the surviving uncles.
Memory aid
Run the SCRD ladder on every lapse question: Survival (did beneficiary survive by 120 hours?) → Class (is beneficiary in the anti-lapse protected class — grandparent's line + stepchild?) → Residue (if anti-lapse fails and gift was residuary, apply UPC §2-604 vs common-law no-residue rule) → Descendants (substitute takers are descendants by representation, not the beneficiary's own estate).
Key distinction
The single most-tested distinction is anti-lapse's protected class versus the universal pool of beneficiaries: anti-lapse only substitutes descendants when the predeceased beneficiary was a relative within the statutorily protected class (UPC: grandparents, their descendants, and stepchildren). A devise to a friend, an unmarried partner, or even a spouse who predeceases simply lapses — anti-lapse does not save it, and the gift falls to the residue or intestacy.
Summary
Lapse questions are mechanical: confirm the beneficiary predeceased, run anti-lapse against the protected class, evaluate contrary intent, and only then apply residue-of-the-residue under either the UPC or common-law default.
Practice will construction and lapse adaptively
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Start your free 7-day trialFrequently asked questions
What is will construction and lapse on the UBE?
At common law, a devise to a beneficiary who predeceases the testator lapses and falls into the residue (or, if the lapsed gift was itself residuary, passes by intestacy under the no-residue-of-a-residue rule). Every U.S. jurisdiction now has an anti-lapse statute that overrides this default by substituting the deceased beneficiary's descendants when the beneficiary is within a statutorily protected class of relatives. Under the Uniform Probate Code (UPC §2-603), the protected class is the testator's grandparents, descendants of the testator's grandparents, and stepchildren; the substituted takers are the predeceased beneficiary's surviving descendants, taking by representation. The UPC also reverses the common-law no-residue-of-a-residue rule (UPC §2-604(b)): a lapsed share of a residuary gift passes to the other residuary takers, not by intestacy.
How do I practice will construction and lapse questions?
The fastest way to improve on will construction and lapse is targeted, adaptive practice — working questions that focus on your specific weak spots within this sub-topic, getting immediate feedback, and revisiting items you missed on a spaced-repetition schedule. Neureto's adaptive engine does this automatically across the UBE; start a free 7-day trial to see your sub-topic mastery climb in real time.
What's the most important distinction to remember for will construction and lapse?
The single most-tested distinction is anti-lapse's protected class versus the universal pool of beneficiaries: anti-lapse only substitutes descendants when the predeceased beneficiary was a relative within the statutorily protected class (UPC: grandparents, their descendants, and stepchildren). A devise to a friend, an unmarried partner, or even a spouse who predeceases simply lapses — anti-lapse does not save it, and the gift falls to the residue or intestacy.
Is there a memory aid for will construction and lapse questions?
Run the SCRD ladder on every lapse question: Survival (did beneficiary survive by 120 hours?) → Class (is beneficiary in the anti-lapse protected class — grandparent's line + stepchild?) → Residue (if anti-lapse fails and gift was residuary, apply UPC §2-604 vs common-law no-residue rule) → Descendants (substitute takers are descendants by representation, not the beneficiary's own estate).
What's a common trap on will construction and lapse questions?
Assuming anti-lapse covers a deceased spouse or friend (it does not — protected class is blood relatives + stepchildren only)
What's a common trap on will construction and lapse questions?
Confusing common-law no-residue-of-a-residue with UPC §2-604(b) — pick the right framework
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