The reason I liked Adam J. Hirsch’s article is in its title: When Beneficiaries Predecease: An Empirical Analysis. Empirical analysis is particularly useful for the default rules governing wills. Most of these rules are intent-furthering, meaning that they ordain the result that legislatures and the Uniform Law Commission think most testators prefer.
Provisions about lapse and antilapse are part of the default rule lexicon for wills. Tempora mutantur may be a universal truth, but some testators nonetheless fail to provide any instructions about what do if a beneficiary predeceases them. The rules of lapse and antilapse fill this gap in the testator’s will. Setting aside some jurisdictional niceties, the rules of lapse are simple enough: (1) property left to the deceased beneficiary goes to the takers of the residuary estate; and (2) if the deceased beneficiary was to receive part or all of the residue, the property goes to either the other takers of the residue or to the testator’s heirs at law.
Unless, that is, an antilapse statute applies. These statutes make the rules governing lapse inapplicable to certain deceased beneficiaries. Instead, in all but one state, the property left to the deceased beneficiary goes to the deceased beneficiary’s descendants.
Sounds simple enough, except that it’s not. As Hirsch explains, there is tremendous jurisdictional variation in which beneficiaries are covered by antilapse statutes. Some states include all blood relatives; others include all blood relatives who are descendants of great-grandparents; others include all blood relatives who are descendants of grandparents; still others include blood relatives and step-children; and on and on and on. (P. 12.) Hirsch writes, “Viewed as a whole, American antilapse statutes’ most salient characteristic is heterogeneity. States have reached a consensus on who the alternative beneficiaries should be—namely, descendants of a predeceasing beneficiary—but on the question of which beneficiaries should come within the ambit of the statute and which should not, widespread divisions remain.” (P. 13.)
One way to resolve these divisions is to investigate actual preferences; that is, to determine what testators want when they leave property to a beneficiary who predeceases them. Previous empirical studies have attempted to answer this question by reviewing wills submitted for probate—a painstaking and time-consuming process that necessarily limits the amount of data collected. Hirsch takes a different tack, undertaking his investigation with the help of an electronic polling firm. Together they conducted five different surveys, with more than 5,000 respondents in total. (P. 38.)
Hirsch’s empirical work suggests that “the statutory formula that steers lapsed bequests alternatively to a beneficiary’s descendants or the residuary beneficiaries” mostly reflects the popular preference—that is, the statutory formula is intent-furthering. (P. 45.) But the “dividing lines”—which beneficiaries fall within antilapse statutes—are both under and over inclusive. (P. 46.)
Take, for example, the over inclusivity regarding sibling beneficiaries and more distant relatives of the testator. Most antilapse statutes apply to siblings of the testator, so that when a sibling predeceases the testator, any property left to the sibling goes to the sibling’s descendants (the nieces, nephews and niblings of the testator). But almost half of the respondents in Hirsch’s survey preferred for the gift to simply fall into the residuary clause. Only 30 percent of respondents preferred that the deceased sibling’s descendants take the property—the result in jurisdictions that apply antilapse statutes to sibling beneficiaries. With more distant relatives, antilapse statutes are even less intent-furthering. Fifty-seven percent of Hirsch’s respondents preferred that gifts to predeceased distant relatives fall into the residue, with only about 20 percent wanting to give the property to the relative’s own descendants. Hirsch’s work thus raises substantial questions about whether antilapse statutes should apply to siblings and more distant relatives.
As an example of under inclusivity, Hirsch’s results suggest that jurisdictions need to re-think bequests to predeceased spouses. In most states, spouses do not fall within the ambit of antilapse statutes. Rather, the ordinary rules of lapse apply, causing any gift to a predeceased spouse to fall into the residue or, if the spouse is taking the residue, causing the gift to be shared with other takers of the residue or to go to the testator’s heirs at law. But about 65 percent of Hirsch’s respondents indicated that they would prefer that any gift to a predeceased spouse simply go to the respondent’s own children. This suggests that (1) states should apply antilapse statutes to predeceased spouses, and (2) when so doing, states should depart from the usual approach of directing the deceased beneficiary’s gift to the deceased beneficiary’s own descendants. (Note that in any marriage with stepchildren, the testator and the predeceased spouse may have different descendants.)
To avoid making this jot one giant spoiler, I will resist the temptation to further summarize Hirsch’s findings. But When Beneficiaries Predecease: An Empirical Analysis is full of thought-provoking, data-driven suggestions for statutory reform. Moreover, as Hirsch writes, “the chasm yawning between lawmakers’ assumptions [about what testators want] and empirical reality” holds larger lessons. Lawmakers have overestimated their ability to predict preferences without data.” I hope that Hirsch’s study is the beginning of an effort to empirically evaluate whether the default rules of wills are as intent-furthering as lawmakers assume.
