A recent Miami-Date County probate dispute dealt with the application of the doctrine of lapse and the anti-lapse statute to the Last Will and Testament of a Hialeah resident.
Cecelia Lorenzo (Testator) died on October 20, 2008. Her Last Will and Testament left her entire estate to her brother and brother-in-law, as follows:
[T]o my brother, JOSE R. MEDINA, and to my brother in law, JESUS LORENZO, in equal shares. If either of them do not survive me, the share of the deceased shall be given to their surviving spouse, JUANA R. MEDINA or MARIA LORENZO respectively.
The Testator’s brother (Jose) and his wife (Juana) each died before the Testator. The Miami Dade County probate court had to decide who was entitled to the one-half share that the Testator intended to leave to Jose or Juana. Not surprisingly, the brother-in-law (Jesus Lorenzo) argued that the bequest to both Jose and Juana had lapsed and, consequently, he should inherit the entire estate.
The children of Jose and Juana argued that the Florida anti-lapse statute should apply to give them a one-half interest in the property. The Florida anti-lapse statute provides that, when a predeceased beneficiary is a descendant of the testator’s grandparents, the predeceased beneficiary’s share will pass to the predeceased beneficiary’s descendants instead of “lapsing” into the testator’s residuary estate. The Miami-Dade County Circuit Court agreed that the anti-lapse statute applied and awarded half of the estate to the Medina children. The brother-in-law appealed.
In Lorenzo v. Medina, 3D10-1243 (Fla. 3d DCA 2010), the 3rd District overturned the Miami-Dade County Circuit Court’s decision. The Court noted that since the anti-lapse statue was a carve-out from well-established common law, it had to be interpreted narrowly. With this as a starting point, the Court held that the anti-lapse statute did not apply to pass Jose and Juana’s estate to their children. Instead, the brother-in-law got everything.
To understand how the Court reached this result, one must apply the lapse statute in logical priority. The Testator’s will left everything to Jose, who predeceased the Testator. Had this been all that the will had said, it is likely that the Medina children would have taken half the estate. The anti-lapse statute would have applied to them since Jose was a descendant of the Testator’s grandparents.
But the Testator’s will specifically named Juana—who was not a descendant of the Testator’s grandparents—as an alternate residuary beneficiary. This took the first lapse (of the bequest to Jose) out of the picture. What the Court was left with was a lapsed bequest to Juana, who was not within the purview of the anti-lapse statute since she was not a descendant of the Testator’s grandparents. Since the anti-lapse statute did not apply, the one-half gift to Jose and Juana is instead distributed to the residuary beneficiary named in the will. This means that the brother-in-law takes all.
Planning Tip: Although we can’t be sure from the public record, it does not look like this was what the Testator intended. Rather, she probably intended to split her estate evenly between her brother’s side of the family and her brother-in-law’s side of the family. But, as clients often do, she probably assumed that either Jose or Juana would survive her. A better-drafted will could have provided for a fall-back category of beneficiaries instead of simply naming two individuals for each side of the family. For example, the simple phrase “or, if she is deceased, to the descendants of Jose R. Medina, per stirpes” would have ensured that Jose and Juana’s one-half of the estate stayed within their family line.