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- Alaska Statutes.
- Title 13. Decedents' Estates, Guardianships, Transfers, and Trusts.
- Chapter 12. Intestacy, Wills, and Donative Transfers
- Section 603. Antilapse; Deceased Devisee; Class Gifts.
previous: Section 602
. Will May Pass All Property and After-Acquired Property.
next: Section 604
. Failure of Testamentary Provision.
AS 13.12.603. Antilapse; Deceased Devisee; Class Gifts.
- (a) If a devisee fails to survive the testator and is a grandparent, a descendant of a grandparent, or a stepchild of
either the testator or the donor of a power of appointment exercised by the testator's will, the following apply:
- (1) except as provided in (4) of this subsection, if the devise is not in the form of a class gift and the deceased
devisee leaves surviving descendants, a substitute gift is created in the devisee's surviving descendants; the
surviving descendants take by representation the property to which the devisee would have been entitled had the devisee
survived the testator;
- (2) except as provided in (4) of this subsection, if the devise is in the form of a class gift, other than a devise to
"issue," "descendants," "heirs of the body," "heirs," "next of kin," "relatives," or "family," or a class described by
language of similar import, a substitute gift is created in the surviving descendants of a deceased devisee; the
property to which the devisees would have been entitled had all of them survived the testator passes to the surviving
devisees and the surviving descendants of the deceased devisees; each surviving devisee takes the share to which the
surviving devisee would have been entitled had the deceased devisees survived the testator; each deceased devisee's
surviving descendants who are substituted for the deceased devisee take by representation the share to which the
deceased devisee would have been entitled had the deceased devisee survived the testator; in this paragraph, "deceased
devisee" means a class member who failed to survive the testator and left one or more surviving descendants;
- (3) for the purposes of AS 13.12.601
, words of survivorship, as in a devise to an individual "if the individual survives me," or in a devise to "my
surviving children," are not, in the absence of additional evidence, a sufficient indication of an intent contrary to
the application of this section;
- (4) if the will creates an alternative devise with respect to a devise for which a substitute gift is created by (1) or
(2) of this subsection, the substitute gift is superseded by the alternative devise only if an expressly designated
devisee of the alternative devise is entitled to take under the will;
- (5) unless the language creating a power of appointment expressly excludes the substitution of the descendants of an
appointee for the appointee, a surviving descendant of a deceased appointee of a power of appointment can be
substituted for the appointee under this section, whether or not the descendant is an object of the power.
- (b) If, under (a) of this section, substitute gifts are created and not superseded with respect to more than one devise
and the devises are alternative devises, one to the other, the determination of which of the substitute gifts takes
effect is resolved as follows:
- (1) except as provided in (2) of this subsection, the devised property passes under the primary substitute gift;
- (2) if there is a younger-generation devise, the devised property passes under the younger-generation substitute gift and
not under the primary substitute gift.
- (c) In (b) of this section,
- (1) "primary devise" means the devise that would have taken effect had all the deceased devisees of the alternative
devises who left surviving descendants survived the testator;
- (2) "primary substitute gift" means the substitute gift created with respect to a primary devise;
- (3) "younger-generation devise" means a devise that
- (A) is to a descendant of a devisee of a primary devise;
- (B) is an alternative devise with respect to the primary devise;
- (C) is a devise for which a substitute gift is created; and
- (D) would have taken effect had all the deceased devisees who left surviving descendants survived the testator except the
deceased devisee or devisees of the primary devise;
- (4) "younger-generation substitute gift" means a substitute gift created with respect to a younger-generation devise.
- (d) In this section,
- (1) "alternative devise" means a devise that is expressly created by the will and, under the terms of the will, can take
effect instead of another devise on the happening of one or more events, including survival of the testator or failure
to survive the testator, whether an event is expressed in condition-precedent, condition- subsequent, or other form; a
residuary clause constitutes an alternative devise with respect to a nonresiduary devise only if the will specifically
provides that, upon lapse or failure, the nonresiduary devise, or nonresiduary devises in general, pass under the
- (2) "class member" includes an individual who fails to survive the testator but who would have taken under a devise in the
form of a class gift had the individual survived the testator;
- (3) "devise" includes an alternative devise, a devise in the form of a class gift, and an exercise of a power of
- (4) "devisee" includes
- (A) a class member if the devise is in the form of a class gift;
- (B) an individual or class member who was deceased at the time the testator executed the testator's will as well as an
individual or class member who was then living but who failed to survive the testator; and
- (C) an appointee under a power of appointment exercised by the testator's will;
- (5) "stepchild" means a child of the surviving, deceased, or former spouse of the testator or of the donor of a power of
appointment, and not of the testator or donor;
- (6) "surviving devisee" or "surviving descendant" means a devisee or a descendant who neither predeceases the testator nor
is considered to have predeceased the testator under AS 13.12.702
- (7) "testator" includes the donee of a power of appointment if the power is exercised in the testator's will.
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