"To My Surviving Children" Switches Off Minnesota's Antilapse Statute. That Is the Statute's Own Language.

Most lawyers I talk to believe Minnesota’s antilapse statute is a safety net that catches a predeceased beneficiary’s gift and hands it down to that beneficiary’s children unless the will says otherwise in so many words. Half of that is right. The other half is backwards, and the trigger that turns the net off is the most commonly used phrase in Minnesota will drafting.

Minn. Stat. § 524.2-603, subd. 2, says it plainly:

For the purposes of section 524.2-601, words of survivorship, such as, in a devise to an individual, “if he or she survives me,” or, in a class gift, to “my surviving children,” are a sufficient indication of an intent contrary to the application of this section.

Read that against § 524.2-601, which supplies the switch it flips: “In the absence of a finding of a contrary intention, the rules of construction in this part control the construction of a will.” Subdivision 2 declares, by statute, that four words are that contrary intention. A testator who writes “to my surviving children, share and share alike” has, as a matter of law, opted out of the antilapse statute. Nothing further is required — no recital of intent, no disinheritance clause, no mention of grandchildren.

I have watched more than one estate turn on that phrase, and in every one of them the drafter thought “surviving” was a harmless belt-and-suspenders word.

What does subdivision 1 actually do?

Subdivision 1 supplies the substitute gift:

If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if the devisee predeceased the testator, the issue of the deceased devisee who survive the testator by 120 hours take in place of the deceased devisee. If they are all of the same degree of kinship to the devisee, they take equally. If they are of unequal degree, those of more remote degree take by representation. A person who would have been a devisee under a class gift if the person had survived the testator is treated as a devisee for purposes of this section, whether the death occurred before or after the execution of the will.

Four things in that sentence do real work.

The protected class is narrow. The devisee must be “a grandparent or a lineal descendant of a grandparent of the testator.” That reaches children, grandchildren, siblings, nieces, nephews, and first cousins. It does not reach a spouse, a stepchild who was never adopted, a friend, a caregiver, or a charity. A gift to any of those people that fails simply fails; there is no substitute taker under this section.

Three triggers, not one. The statute operates if the devisee “is dead at the time of execution of the will,” if the devisee “fails to survive the testator,” or if the devisee “is treated as if the devisee predeceased the testator.” That third trigger is the one people miss. Minnesota deems a beneficiary to have predeceased in several places — the 120-hour survival rule in § 524.2-702, the slayer statute in § 524.2-803, and the divorce-revocation statute in § 524.2-804. When one of those provisions kicks a beneficiary out, § 524.2-603 can put that beneficiary’s children in.

The substitutes must clear 120 hours. The issue must “survive the testator by 120 hours” — five days, not an instant. That is the same clock § 524.2-702 runs against the devisee.

Class gifts are covered expressly. A person “who would have been a devisee under a class gift if the person had survived the testator is treated as a devisee,” and it does not matter whether the death came before or after the will was signed. So “to my children” — with no survivorship language — carries the antilapse rule into the class, and a predeceased child’s children step into that child’s share.

Distribution among unequal generations is “by representation,” which § 524.2-709(b) defines: the property “is divided into as many equal shares as there are (i) surviving children of the designated ancestor and (ii) deceased children who left surviving descendants,” with subdivision repeating at each generation. Who counts as a class member is fixed by § 524.2-705, which folds adopted individuals and individuals born out of wedlock into class gifts “in accordance with the rules for intestate succession,” presumes that terms like “uncles” and “nieces” exclude relatives by affinity, and presumes that terms like “brothers” and “sisters” include the half blood.

How the rule flipped in 2001

This is not a drafting accident. The legislature did it on purpose, twice.

Under the pre-1996 numbering, § 524.2-605 was the antilapse statute and § 524.2-603 was the intent-controls section. The Minnesota Supreme Court applied that pairing in In re Estate of Ulrikson, 290 N.W.2d 757 (Minn. 1980). The residuary clause left everything to a brother and sister “and in the event that either one of them shall predecease me, then to the other surviving brother or sister.” Both predeceased. The court applied the antilapse statute anyway, holding at 759: “In this case, we hold the words of survivorship to be effective only if there are survivors. Since there are no survivors in this case, the anti-lapse statute is free to operate.”

Twelve years later the Court of Appeals took the other half of the problem in In re Estate of Zagar, 491 N.W.2d 915 (Minn. Ct. App. 1992). The will gave everything to three sisters and a brother “or to the survivors of them if any shall have died before me.” One sister predeceased, leaving two children. Three class members survived. The court held at 917: “Where survivorship language is used in a class gift, the beneficiaries are the surviving class members, not the heirs of predeceased members.” Because three of the four survived, “application of the anti-lapse statute is similarly inappropriate.”

Then In re Estate of Schwake, 543 N.W.2d 125 (Minn. Ct. App. 1996), cleaned up the inverse. A residuary gift to “all of my first cousins, except Helen Lieb, share and share alike” contained no survivorship words at all. The district court read one in. The Court of Appeals reversed, holding at 127: “the antilapse statute is applicable unless there is language in the will that indicates the testator intended a contrary result.” Schwake’s own footnote records that after the 1994 recodification, effective January 1, 1996, the operative language had moved to § 524.2-603, subd. (b)(2).

Then the legislature intervened. Laws 2001, ch. 15, § 14, repealed Minnesota Statutes 2000, § 524.2-603 outright, and § 13 of the same act enacted the two-subdivision section now in force — including the survivorship rule in subdivision 2. The governor signed it on April 6, 2001. The act specified no effective date and carried no appropriation item, so under § 645.02 it took effect August 1, 2001.

The practical consequence is blunt. For a will governed by the current statute, Ulrikson’s “effective only if there are survivors” gloss no longer describes the rule. Subdivision 2 makes the words themselves sufficient contrary intent, and it draws no distinction between the case where some class members survive and the case where none do. I have found no published Minnesota appellate decision construing subdivision 2 since the 2001 rewrite — which means the statute is doing this work in probate court, quietly, without an opinion to warn anybody.

The residue-of-the-residue rule, and why antilapse outranks it

Section 524.2-604 handles what happens to a devise that fails and is not rescued:

(a) Except as provided in section 524.2-603, a devise, other than a residuary devise, that fails for any reason becomes a part of the residue.

(b) Except as provided in section 524.2-603, if the residue is devised to two or more persons, the share of a residuary devisee that fails for any reason passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.

Both paragraphs open with the same deference. Antilapse is checked first. Only if § 524.2-603 does not supply a substitute taker does a failed specific devise drop into the residue, or a failed residuary share redistribute among the surviving residuary devisees. That ordering is the difference between a predeceased child’s family taking a full share and taking nothing.

Note what paragraph (b) does not say. It does not send a failed residuary share to intestacy while other residuary devisees remain. Minnesota adopted the residue-of-the-residue rule; the old common-law result — the failed residuary share passing to the heirs as if there were no will — is gone from the statute.

There is no § 524.2-706

I went looking for Minnesota’s nonprobate antilapse statute at § 524.2-706. It does not exist. Neither does § 524.2-707 or § 524.2-710. Minnesota’s article 2, part 7 runs 2-701 through 2-712 with those three numbers simply absent.

That absence is the single most important fact in this article for anyone whose estate plan runs through beneficiary designations, and it is worth stating flatly: Minnesota has no general antilapse rule for nonprobate transfers. What it has instead is a set of scattered, medium-specific provisions that do not agree with each other.

Transfer on death deeds have their own antilapse statute — in chapter 507. Minn. Stat. § 507.071, subd. 11(a), is a near-copy of § 524.2-603, subd. 1:

Except when a successor grantee beneficiary is designated in the transfer on death deed for the grantee beneficiary who did not survive the grantor owner, if a grantee beneficiary who is a grandparent or lineal descendant of a grandparent of the grantor owner fails to survive the grantor owner, the issue of the deceased grantee beneficiary who survive the grantor owner take in place of the deceased grantee beneficiary.

And subdivision 11(b) carries the same kill switch:

For the purposes of this subdivision, words of survivorship such as, in a conveyance to an individual, “if he or she survives me,” or, in a class gift, to “my surviving children,” are a sufficient indication of intent to condition the conveyance or transfer upon the beneficiary surviving the grantor owner.

If everyone in line is gone, subdivision 12 ends it: “no transfer shall occur and the transfer on death deed is void.” The house then passes under the will or by intestacy — the exact outcome the deed was recorded to avoid. Two subdivisions guard against that. Subdivision 5 permits the deed to name “one or more successor grantee beneficiaries or a class of successor grantee beneficiaries, or both,” and requires the deed to “state the condition under which the interest of the successor grantee beneficiaries would vest.” Subdivision 4 supplies a narrow default for joint-tenant beneficiaries only: if a grantee joint tenant dies first and no successor is named, “the surviving joint tenants are the successors and no interest lapses.” Beneficiaries taking as tenants in common get no such protection.

One more trap in subdivision 11(c): when issue take under the antilapse rule, an affidavit of survivorship naming the beneficiaries and shares “is not conclusive,” and “a court order made in accordance with Minnesota probate law determining the beneficiaries and shares must also be recorded.” The nonprobate transfer has just become a probate proceeding. See my longer treatment of the transfer on death deed.

Payable-on-death accounts get survivorship, not substitution. Minn. Stat. § 524.6-204(b): sums on deposit “belong to the P.O.D. payees if surviving, or to the survivor of them if one or more die before the surviving original party.” A predeceased payee’s share goes to the other payees — not to that payee’s children. There is no antilapse rule for bank accounts at all. If two of three named children predecease, the third takes everything, and the two deceased children’s families take nothing. That is a very different result from the same three names in a will with no survivorship language. More on POD and joint accounts.

Revocable trusts borrow the will rules — including subdivision 2. Minn. Stat. § 501C.0112: “The rules of construction that apply in this state to the interpretation of and disposition of property by will also apply as appropriate to the interpretation of the terms of a trust and the disposition of the trust property.” So § 524.2-603 reaches a revocable trust “as appropriate,” and so does the survivorship rule that defeats it. A funded revocable trust that distributes “to my surviving children” is in the same position as a will that says it.

Everything runs on the 120-hour clock, with one carve-out. Section 524.2-702(a) sweeps in four instruments at once:

A beneficiary of a trust in which the grantor has reserved a power to alter, amend, revoke, or terminate the provisions of the trust who fails to survive the grantor by 120 hours, a devisee who fails to survive the testator by 120 hours, a beneficiary named in a transfer on death deed under section 507.071 who fails to survive by 120 hours the grantor owner upon whose death the conveyance to the beneficiary becomes effective, or an appointee of a power of appointment taking effect at the death of the holder of the power who fails to survive the holder of the power by 120 hours is deemed to have predeceased the grantor, grantor owner testator, or holder of the power for purposes of determining title to property passing by the trust instrument, by the testator’s will, by the transfer on death deed, or by the exercise of the power of appointment.

Paragraph (d) then removes it where the instrument says otherwise, and removes it entirely from retirement money: “Paragraph (a) does not apply to trusts which are part of a qualified or nonqualified retirement plan or individual retirement accounts.”

So the 401(k), the IRA, and the life insurance policy sit outside all of it. No antilapse, and for retirement trusts no 120-hour rule either. Those designations are governed by the plan document and the contract — which is why a stale beneficiary form on a retirement account is the most dangerous piece of paper in a Minnesota estate plan. Two statutes reach those forms without anyone lifting a pen: § 524.2-803, the slayer statute, whose paragraph (d) strips a life insurance beneficiary who “feloniously and intentionally kills the person upon whose life the policy is issued,” and § 524.2-804, the divorce revocation statute, which revokes a revocable beneficiary designation running to a former spouse. Even § 524.2-804 gives way by its own terms to “a plan document governing a qualified or nonqualified retirement plan.”

What to write instead

The drafting problem is not hard once you know which way the default runs. It is knowing that in Minnesota the default runs against substitution the moment anyone types “surviving.”

• Decide, then say so. If you want a predeceased child’s children to take that child’s share, write it: “to my children who survive me and the then-living issue, by representation, of any child of mine who does not survive me.” That defeats nothing; it states the result you want and leaves nothing to subdivision 2.
• If you want survivors only, keep “surviving” — and say why. “To such of my children as survive me, share and share alike; I intend that the issue of a child who does not survive me take nothing, and I intend that section 524.2-603 not apply.” Subdivision 2 gets you there on the first clause alone, but the recital forecloses the argument.
• Never use “surviving” as a filler word. In a Minnesota will it is not filler. It is a statutory election.
• Name successor beneficiaries on every transfer on death deed, and state the vesting condition subdivision 5 requires. Otherwise § 507.071, subd. 12, voids the deed and sends the house through probate.
• Do not assume a POD account behaves like a will. It does not. If you want a deceased payee’s children to take, the account form has to say so, or the asset has to move into the trust or the will.
• Pull the retirement and insurance beneficiary forms every time you touch the plan. Chapter 524 will not fix them for you, and § 524.2-702(d) says so.
• Re-read old wills against the 2001 rewrite. A will drafted in the 1990s under Ulrikson and Zagar is now read under a statute that was not in force when it was signed, and the phrase that seemed harmless then is dispositive now.

Related reading: what intestacy does when a plan fails, and the two omitted-heir statutes that operate on the same wills from the other direction.

Madgett Law, LLC

We handle Minnesota will and trust construction proceedings, contested distributions where a beneficiary predeceased, transfer on death deed failures, and beneficiary-designation disputes over accounts, retirement plans, and insurance. If a Minnesota estate is being distributed on the strength of a single word in a residuary clause, or a recorded transfer on death deed has failed and no one can tell you who owns the house, call 612-470-6529 or send us a message.

Sources: Minn. Stat. § 524.2-601 (rules of construction in part 6 control a will’s construction “[i]n the absence of a finding of a contrary intention”). Minn. Stat. § 524.2-603 — subd. 1 (protected class limited to a grandparent or lineal descendant of a grandparent of the testator; three triggers — dead at execution, fails to survive, or treated as if predeceased; issue must survive the testator by 120 hours; equal shares among the same degree of kinship, more remote degrees by representation; class-gift members treated as devisees whether death occurred before or after execution), subd. 2 (words of survivorship, including “if he or she survives me” and “my surviving children,” are a sufficient indication of an intent contrary to the application of the section, for purposes of § 524.2-601). Minn. Stat. § 524.2-604 — para. (a) (a failed nonresiduary devise becomes part of the residue, except as provided in § 524.2-603), para. (b) (a failed residuary share passes to the other residuary devisees in proportion, except as provided in § 524.2-603). Minn. Stat. § 524.2-702 — para. (a) (120-hour survival requirement for revocable-trust beneficiaries, devisees, transfer on death deed beneficiaries under § 507.071, and appointees of powers of appointment; each is deemed to have predeceased), para. (d) (section inapplicable where the instrument provides differently; paragraph (a) inapplicable to trusts that are part of a qualified or nonqualified retirement plan or individual retirement accounts). Minn. Stat. § 524.2-705 (adopted individuals and individuals born out of wedlock included in class gifts per the intestacy rules; terms not differentiating affinity presumed to exclude relatives by affinity; terms not differentiating the half blood presumed to include both). Minn. Stat. § 524.2-803 — para. (a) (the estate passes as if a felonious and intentional killer had predeceased the decedent), para. (d) (a life insurance beneficiary who feloniously and intentionally kills the insured is not entitled to any benefit under the policy). Minn. Stat. § 524.2-804 — subd. 1 (dissolution or annulment revokes a revocable disposition, beneficiary designation, or appointment running to a former spouse, except as provided by the express terms of a governing instrument, a court order, a marital-property contract, or a plan document governing a qualified or nonqualified retirement plan), subd. 2 (the governing instrument is given effect as if the former spouse died immediately before the dissolution or annulment). Minn. Stat. § 524.2-709(b) (definition of distribution by “representation” / “per stirpes”). Minn. Stat. § 501C.0112 (rules of construction for wills apply as appropriate to trusts). Minn. Stat. § 507.071 — subd. 4 (surviving grantee joint tenants are successors and no interest lapses where no successor beneficiary is designated), subd. 5 (successor grantee beneficiaries may be designated; the deed must state the vesting condition), subd. 11(a) (antilapse for transfer on death deed beneficiaries within the grandparent-descendant class, subject to a designated successor), subd. 11(b) (words of survivorship are a sufficient indication of intent to condition the transfer on survival), subd. 11(c) (affidavit of survivorship not conclusive; a probate-law court order determining beneficiaries and shares must also be recorded), subd. 12 (if all beneficiaries, successors, and antilapse takers fail to survive, no transfer occurs and the deed is void). Minn. Stat. § 524.6-204(b) (P.O.D. sums belong to the payees if surviving, or to the survivor of them; no substitution for a predeceased payee’s issue). Minn. Stat. § 645.02 (an act without an appropriation item and without a specified effective date takes effect August 1 following final enactment). Section-existence checks: revisor.mn.gov returns no § 524.2-706, no § 524.2-707, and no § 524.2-710. In re Estate of Ulrikson, 290 N.W.2d 757 (Minn. 1980) (captioned in the Caselaw Access Project archive as Olson v. Erickson, No. 50063), at 759 (words of survivorship “effective only if there are survivors”; antilapse statute free to operate where none survived), read from static.case.law. In re Estate of Zagar, 491 N.W.2d 915 (Minn. Ct. App. 1992), at 917 (survivorship language in a class gift means surviving class members take, not the heirs of predeceased members; antilapse inapplicable where three of four class members survived), read from static.case.law. In re Estate of Schwake, 543 N.W.2d 125 (Minn. Ct. App. 1996), at 127 (antilapse applies unless the will contains language indicating a contrary intent; noting the post-1994 relocation of the language to § 524.2-603, subd. (b)(2), effective January 1, 1996), read from static.case.law. Session law: Laws 2001, ch. 15, § 13 (enacting the current § 524.2-603, including subdivision 2) and § 14 (repealing Minnesota Statutes 2000, § 524.2-603), presented to the governor April 4, 2001 and signed April 6, 2001; the act specifies no effective date and contains no appropriation item. Statutory text retrieved from the Minnesota Office of the Revisor of Statutes (2025 edition); no pending-amendment banner appeared on §§ 524.2-601, 524.2-603, 524.2-604, 524.2-702, 524.2-705, 524.2-709, 524.6-204, 501C.0112, or 507.071. Bold emphasis within quoted statutory text is added. This article is general legal information about Minnesota law, not legal advice, and reading it does not create an attorney–client relationship. Which words a particular will or deed uses, and what the record shows about the testator’s intent, decide these cases. No outcome is promised or implied.