Obviously the words contained in a last will and testament have significant impact. Countless books in law libraries are filled with cases centered on determining the intent of the deceased or through the application of specific language in a Will. In Florida, we generally recognize several different categories of testamentary gifts: (1) pecuniary (2) specific (3) demonstrative (4) general or (5) residuary.
Pecuniary gift: This is a gift a specific dollar amount that can be paid from any general asset that exists in the estate.
Example: To my daughter Angelina, I give the sum of ($100,000.00) if she survives me.
Specific gift: As the name implies, this is a specific asset of the decedent devised to a beneficiary. These gifts can only be satisfied by giving the person the specific item of property. If the item does not exist at the time of the death of the decedent, that gift or devise fails, meaning that the provision is not enforceable and the beneficiary is not entitled to an item of equivalent value.
Example: To my daughter Angelina, I give my engraved hunting rifle.
Demonstrative Gift: A bit of a hybrid of the previous two, a demonstrative gift is a gift payable out of a particular source, but if not available then out of the general assets of the estate.
Example: I give 200 shares of Z Corp to my daughter Angelina if she survives me. This is to be paid from my Z Corp shares which I have at death if it exists, otherwise my Personal Representative shall make provision for payment of the equivalent value of 200 shares of Z Corp from other assets in my estate then existing at my death.
General Gift: General gifts are payable from the general assets of the property and may be satisfied from a range of assets in the estate. Importantly, unlike a specific gift, if this item does not fail if it does not exist at the time of death.
Example: To my daughter Angelina, I give a 2016 Nissan Rogue, if I do not own such a vehicle at my death I direct my Personal Representative to purchase one and provide it to her.
Residuary Gifts: The term residue, or “rest, residue and remainder” of an estate is the catch all for the remaining assets after all specific assets have been distributed.
Example: “I give the rest, residue and remainder of my estate wherever situated whether it be personal or real property to my wife.”
The Florida probate code also contains a carve out to prevent the loss of certain gifts, called an “Ademption.” These provisions are contained in the anti-lapse statutes as follows:
Fla. Stat. 732.604:
732.604. Failure of testamentary provision
(1) Except as provided in s. 732.603, if a devise other than a residuary devise fails for any reason, it becomes a part of the residue.
(2) Except as provided in s. 732.603, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to the other residuary devisees in proportion to the interests of each in the remaining part of the residue.
Fla. Stat. 732.603 provides:
732.603. Antilapse; deceased devisee; class gifts
(1) Unless a contrary intent appears in the will, if a devisee who is a grandparent, or a descendant of a grandparent, of the testator:
(a) Is dead at the time of the execution of the will;
(b) Fails to survive the testator; or
(c) Is required by the will or by operation of law to be treated as having predeceased the testator,
a substitute gift is created in the devisee’s surviving descendants who take per stirpes the property to which the devisee would have been entitled had the devisee survived the testator.
(2) When a power of appointment is exercised by will, unless a contrary intent appears in the document creating the power of appointment or in the testator’s will, if an appointee who is a grandparent, or a descendant of a grandparent, of the donor of the power:
(a) Is dead at the time of the execution of the will or the creation of the power;
(b) Fails to survive the testator; or
(c) Is required by the will, the document creating the power, or by operation of law to be treated as having predeceased the testator,
a substitute gift is created in the appointee’s surviving descendants who take per stirpes the property to which the appointee would have been entitled had the appointee survived the testator. Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an object of a power for the object, a surviving descendant of a deceased object of a power of appointment may be substituted for the object whether or not the descendant is an object of the power.
Florida statutes will try to work around the ademption or failing of a specific devise with the antilapse statute contained in Fla. Stat. 732.603 which effectively allows a lineal descendant of the decedent to take instead if the devisee had predeceased the decedent. Obviously best practice is to specifically name an alternative beneficiary on your testamentary provisions. The failure to understand the implications of the wording contained within a Last Will and Testament or the failure to draft with particularity can cause problems and ambiguity for the Personal Representative in an estate. If you find yourself dealing with an estate dispute revolving around Will construction it is important to retain a probate litigation attorney well versed in this grey area of the law. Should you find yourself dealing with a Florida will contest or will construction give us a call for a free consultation, we are here to help.