What Happens If My Heir Dies Before Me?

Two groups of people are separated by a crack.

We tend to make our estate plans based on certain assumptions. Most of the time, we assume our children will outlive us, although we know that that doesn’t always happen. What happens if our assumption on that score proves incorrect? One question many people don’t stop to think—or find too painful to think—is “what happens if my heir dies before me?”

There are laws in place, called “anti-lapse statutes,” that are designed to prevent unintended consequences if that happens. For instance, let’s say you have three children, each of whom has three children of their own. When creating your estate plan, you make a will that divides your estate equally among your three children, “share and share alike.”

At the time you made the will, you probably weren’t anticipating that one of your children might die before you. If you did think of it, you might have assumed that your grandchildren would have inherited the share of your deceased parent.

But in Ohio, until recently, you might have been wrong about that.

Castillo v. Ott

A 2015 Ohio Supreme Court case highlighted a problem with Ohio’s anti-lapse statute. In that case, Castillo v. Ott, the deceased testator (person making a will) had specified in his will that his estate was to be divided among his children, “share and share alike, absolutely and in fee simple.” However, the testator’s son Roger, died before him. The attorney for the estate told Roger’s children that the bequest to their father lapsed upon his death.

Roger’s children filed a lawsuit called an action for declaratory judgment, seeking a determination as to whether Ohio’s anti-lapse statute would prevent Roger’s share of the bequest from lapsing. The trial court dismissed their lawsuit, and the appellate court upheld the dismissal.

The basis for the dismissal was that a class devise (bequest) to one’s children did not qualify for the anti-lapse protection offered by Ohio Revised Code section 2107.52. That statute  provides that when a will makes a gift to a class of people, and one member of the class dies before the testator, a substitute gift will be made to the descendants of the deceased class member. However, ORC section 2107.52(B)(2)(b) made an exception to that general rule of substitution when the class was defined as “issue,” “descendants,” “heirs of the body,” “heirs,” “next of kin,” “relatives,” “family,” or “a class described by language of similar import.”

The Castillo court held that a class gift to children was a “class described by language of similar import.” As a consequence, the children of the testator’s deceased son in Castillo did not receive their father’s share of their grandfather’s estate; instead, it went to their father’s surviving siblings.

The Ohio Legislature’s Response

The Ohio Legislature found the result in the Castillo case was contrary to the policy that Ohio’s anti-lapse statute was intended to embody. This is not hard to understand; it is likely that most people would not want to disinherit a branch of their family simply because one of their children had predeceased them.

The Legislature’s solution, which took effect on March 22, 2019, was to add six words to the statute. Now, there is only an exception to the antilapse statute for “a class described by language of similar import” if that group is a class that includes more than one generation.

In other words, had Castillo been decided under current Ohio law, the result would have been different. Because the testator’s class bequest was to “children,” a group that only included one generation, the anti-lapse statute would have applied, and the children of the testator’s deceased son would have taken his share.

Hopefully, the change to Ohio’s anti-lapse statute will provide clarity and produce just results in the administration of Ohio estates. Of course, the best option is not to rely on a statute, but to have your will, trust, and other estate planning documents drafted by an experienced Ohio estate planning attorney, so that your heirs don’t end up in a courtroom fighting over your intent.

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Categories: Estate Planning