Michigan Laws 700.2603 – Substitute gift
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(1) If a devisee fails to survive the testator and is a grandparent, a grandparent’s descendant, or a stepchild of either the testator or the donor of a power of appointment exercised by the testator’s will, the following apply:
(a) Except as provided in subdivision (d), 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. Those surviving descendants take by representation the property to which the devisee would have been entitled had the devisee survived the testator.
Terms Used In Michigan Laws 700.2603
- 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 1 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 another form. See Michigan Laws 700.2601
- Application: means a written request to the probate register for an order of informal probate or informal appointment under part 3 of article III. See Michigan Laws 700.1103
- Class member: includes , but is not limited to, an individual who fails to survive the testator but who would have taken under a devise in the form of a class gift had he or she survived the testator. See Michigan Laws 700.2601
- Descendant: means , in relation to an individual, all of his or her descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent contained in this act. See Michigan Laws 700.1103
- Devise: includes , but is not limited to, an alternative devise, a devise in the form of a class gift, and an exercise of a power of appointment. See Michigan Laws 700.2601
- Devise: To gift property by will.
- Devisee: includes , but is not limited to, the following:
(i) A class member if the devise is in the form of a class gift. See Michigan Laws 700.2601Donor: The person who makes a gift. Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other. Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value. Power of appointment: means that term as defined in section 2 of the powers of appointment act of 1967, 1967 PA 224, MCL 556. See Michigan Laws 700.1106 Property: means anything that may be the subject of ownership, and includes both real and personal property or an interest in real or personal property. See Michigan Laws 700.1106 Stepchild: means a child of the surviving, deceased, or former spouse of the testator or of the donor of a power of appointment, who is not the testator's or donor's child. See Michigan Laws 700.2601 Survive: means that an individual neither predeceases an event, including the death of another individual, nor is considered to predecease an event under section 2104 or 2702. See Michigan Laws 700.1107 surviving descendant: means a devisee or a descendant who neither predeceased the testator nor is considered to have predeceased the testator under section 2702. See Michigan Laws 700.2601 Testator: includes the donee of a power of appointment if the power is exercised in the testator's will. See Michigan Laws 700.2601 Testator: A male person who leaves a will at death.
(b) Except as provided in subdivision (d), 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 to 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 devisee would have been entitled had all class members survived the testator passes to the surviving devisees and the deceased devisees’ surviving descendants. Each surviving devisee takes the share to which he or she 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. For the purposes of this subdivision, “deceased devisee” means a class member who fails to survive the testator and leaves 1 or more surviving descendants.
(c) For the purposes of section 2602(1), words of survivorship, such as in a devise to an individual “if he 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.
(d) If the will creates an alternative devise with respect to a devise for which a substitute gift is created by subdivision (a) or (b), 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.
(e) Unless the language creating a power of appointment expressly excludes the substitution of the appointee’s descendants 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.
(2) If, under subsection (1), substitute gifts are created and not superseded with respect to more than 1 devise and the devises are alternative devises, one to the other, the determination of which of the substitute gifts take effect is resolved as follows:
(a) Except as provided in subdivision (b), the devised property passes under the primary substitute gift.
(b) If there is a younger-generation devise, the devised property passes under the younger-generation substitute gift and not under the primary substitute gift.
(3) As used in this section:
(a) “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.
(b) “Primary substitute gift” means the substitute gift created with respect to the primary devise.
(c) “Younger-generation devise” means a devise for which all of the following are true:
(i) Is to a descendant of a devisee of the primary devise.
(ii) Is an alternative devise with respect to the primary devise.
(iii) Is a devise for which a substitute gift is created.
(iv) 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.
(d) “Younger-generation substitute gift” means the substitute gift created with respect to the younger-generation devise.