Kansas Antilapse Statute: What Happens If a Beneficiary Dies First
The Kansas antilapse statute may decide who receives a gift when a beneficiary dies before the person who made the will. Without this law, that gift would often fail. Instead, the statute can redirect certain gifts to the beneficiary’s own descendants. However, it does not protect every beneficiary, and a will can override it.
This guide explains what “lapse” means, who the statute covers and where a failed gift may go. It also explains the Kansas 120 hour rule. Because every estate is different, treat this as general information rather than advice about your family.
What Does “Lapse” Mean in a Kansas Will?
In plain words, a gift lapses when it fails because the beneficiary died before the testator. The testator is the person who made the will.
The Kansas Supreme Court stated this general rule in In re Estate of Ricklefs (1973). Under it, a gift to one person typically lapses unless the will or a statute directs otherwise. The Kansas antilapse statute is one such statute.
How the Kansas Antilapse Statute Works
The statute is K.S.A. 59-615. It steps in only when several conditions line up. If any condition is missing, the gift may still lapse.
Who the Kansas Antilapse Statute Protects
First, the gift must go to a covered beneficiary. Under the statute, that generally means:
- the testator’s spouse;
- a relative by lineal descent, by blood or adoption, such as a child or grandchild; or
- another relative within the sixth degree, by blood or adoption.
In In re Estate of Holderman (2025), discussed below, the Kansas Court of Appeals treated a testator’s parents as falling within this group. Still, counting degrees of kinship can get technical.
Second, the beneficiary must leave “issue” who survive the testator. The statute defines issue as offspring, progeny or lineal descendants, by blood or adoption, in whatever degree. In practice, that can include children, grandchildren and later generations.
Suppose both conditions apply and a beneficiary dies before the testator. The descendants then generally take the same gift the predeceased beneficiary would have received. In In re Estate of Sowder (1959), for example, a grandson received the cash gift his late father would have taken. On the other hand, if a predeceased beneficiary leaves no surviving descendants, the statute typically cannot help.
People Who May Fall Outside the Statute
The statute names a spouse and relatives by blood or adoption. As a result, a gift to a friend, neighbor, caregiver or charity generally falls outside its protection.
Relatives by marriage raise a closer question. In Ricklefs, a woman left land to her late husband’s nephew, who died before her and left children. Because he was not her blood relative, the court held that the gift lapsed. That case applied an earlier version of the statute. However, the current text still limits coverage to a spouse and to relatives by blood or adoption.
Stepchildren may face a similar issue. Most stepchildren are relatives by marriage, not by blood. Unless the testator adopted the stepchild, the statute may not protect a direct gift to that stepchild. The statute also covers gifts to a spouse, though. So if a spouse dies first, the spouse’s own descendants, including the testator’s stepchildren, may take that gift. Because no Kansas authority reviewed here decides the stepchild question directly, an attorney should review any plan that includes stepchildren.
When a Will Overrides the Kansas Antilapse Statute
The statute contains an important exception. It applies “unless a different disposition is made or required by the will.” In other words, the testator’s own words generally come first.
Survivorship language is a common example. A will might leave property to someone only “if she shall survive me by 30 days.” In In re Estate of Stroble (1981), a will left everything to the testator’s mother on that exact condition. Mother and daughter died on the same day, and no one could show who died first. The Kansas Court of Appeals held that the survival condition controlled, so the antilapse statute did not apply. Because the will named no backup beneficiary, the estate passed by intestacy. As a result, the husband the will tried to exclude received the entire estate.
Naming an alternate beneficiary is another way to make a different disposition. Likewise, some wills simply state that a gift lapses if the beneficiary dies first.
Where Does a Lapsed Gift Go?
When a gift lapses and the statute does not save it, the property still has to go somewhere. These questions often surface in probate, when the estate’s personal representative works through the will. Kansas case law generally points to three possible destinations.
Into the Residuary Estate
Most wills include a residuary clause, which covers everything not given away elsewhere. Kansas courts have generally held that a lapsed gift falls into this residue. For instance, in Shannep v. Strong (1945), a will placed land in trust for a local church. Years after the testator died, the church disbanded and the trust lapsed, so the land passed to the person named in the residuary clause. Stroble later restated the general principle for gifts that lapse because a beneficiary dies first: the gift falls into the residue.
To the Other Residuary Beneficiaries
Sometimes the lapsed gift is itself a share of the residue. In Sowder, a daughter named in the residuary clause died before her father and left no children, so the antilapse statute could not help. The Kansas Supreme Court held that her share went to the surviving residuary beneficiaries rather than passing by intestacy. That approach generally applies when the will names the residuary beneficiaries individually and says nothing different.
By Intestacy When Nothing Else Applies
If the will has no residuary clause, a lapsed gift may pass by intestacy. In that case, Kansas inheritance law decides who receives it, much as it would after dying without a will in Kansas. Those intestacy rules are separate from the antilapse statute, and they follow their own order of heirs.
Disinherited Children and the Kansas Antilapse Statute
A 2025 Kansas Court of Appeals decision shows how these rules can interact with disinheritance. In In re Estate of Holderman, a man left his entire estate to his parents. His will also stated that his two children should not inherit. Both parents died before him, and the will had no residuary clause.
The court held that K.S.A. 59-615 applied, so the parents’ descendants took what the parents would have received. The court treated the two disinherited children as if they had died first. However, the will said nothing about the man’s grandchildren. As a result, his disinherited daughter’s four children could still share in the estate.
The takeaway is that when the Kansas antilapse statute applies, disinheriting a child may not reach that child’s own children unless the will clearly says so. Our companion article, Kansas Disinheritance: Can You Leave Family Out of Your Will?, explores this topic in more depth.
The 120 Hour Rule for Simultaneous Death in Kansas
Sometimes no one can tell who died first, such as after a car crash. Kansas addresses this problem with a 120 hour rule, which equals five days.
When inheritance depends on who survived whom, K.S.A. 58-709 generally requires clear and convincing evidence that one person outlived the other by 120 hours. Without that proof, the law treats the person as having died first. The rule does not apply, however, if it would cause an intestate estate to pass to the state. Similarly, K.S.A. 58-710 applies a 120 hour test to gifts under what the statute calls a “governing instrument.” An attorney can explain which documents that term reaches.
As a result, the law may treat a beneficiary who dies two days after the testator as having died first. Questions about lapse and the antilapse statute may then follow.
Joint Owners With Survivorship Rights
Property owned jointly with a right of survivorship follows its own version of the rule. Under K.S.A. 58-711, the property generally splits in half when no one can show that one of two owners survived the other by 120 hours. One half passes as if the first owner survived, and the other half passes as if the second owner survived. With more than two owners, the property generally passes in equal fractions based on the number of owners.
When the 120 Hour Rule Does Not Apply
K.S.A. 58-713 lists several exceptions. The 120 hour rule generally does not apply when:
- the governing instrument explicitly addresses simultaneous deaths or deaths in a common disaster, and that language fits the facts;
- the instrument expressly requires survival for a stated period, or expressly says the person need not survive for any set period;
- the 120 hour requirement would make a nonvested property interest or a power of appointment invalid under the rule against perpetuities; or
- applying the rule to several instruments would cause an unintended failure or duplication of a gift.
For that reason, a will with its own survival clause, such as 30 days, generally follows that clause instead of the 120 hour rule.
Planning Topics to Discuss With a Kansas Estate Planning Attorney
Because the Kansas antilapse statute and these related rules turn on precise wording, many people review their wills with counsel. Topics worth raising with a Kansas estate planning attorney may include:
- naming alternate beneficiaries for important gifts;
- deciding whether to require a survival period, and how long it should last;
- including a clear residuary clause;
- deciding whether disinheritance language should also cover a person’s descendants; and
- updating the will after a beneficiary dies, a topic covered in our companion article, Kansas Will Revocation: How to Change or Cancel Your Will.
Couples may also want to ask how these issues affect shared planning. Our companion article, Kansas Joint Wills: When a Couple’s Will Becomes a Binding Contract, covers that topic. If you are new to estate planning, our overview of what a will is covers the basics.
Mack & Associates, LLC serves clients across Kansas from offices in Topeka, Wichita, Lawrence, Leawood and Dodge City. If a beneficiary in your will has died, our attorneys can review where that gift may go. Our will and trust attorneys in Topeka also help clients plan ahead for that possibility. You can also schedule a free strategy session to talk through your options.
Frequently Asked Questions About the Kansas Antilapse Statute
Does a gift always pass to the beneficiary’s children if the beneficiary dies first?
Not always. Descendants generally step in only if the beneficiary was a spouse or covered relative who left descendants surviving the testator. The will also must not direct otherwise. If those conditions fail, the gift may lapse.
Does the statute cover a gift to a friend?
Generally, no. K.S.A. 59-615 covers a spouse and relatives by blood or adoption. A gift to a friend may lapse if the friend dies first, unless the will names an alternate.
What is the 120 hour rule in Kansas?
It is a simultaneous death rule. Without clear and convincing proof of 120 hours of survival, the law generally treats a person as having died first. A will’s own survival clause may replace this rule.
Can a will override the antilapse statute?
Generally, yes. The statute applies unless the will makes or requires a different disposition. Survival conditions and alternate beneficiaries are common examples. An attorney can help you choose wording that fits your wishes.
Where does a lapsed gift go if the will has no residuary clause?
The gift may pass by intestacy, so Kansas inheritance law decides who receives it. The outcome often depends on the family and the rest of the will.
Legal Sources on the Kansas Antilapse Statute
- K.S.A. 59-615, 58-709, 58-710, 58-711 and 58-713
- In re Estate of Ricklefs, 211 Kan. 713, 508 P.2d 866 (1973)
- Shannep v. Strong, 160 Kan. 206, 160 P.2d 683 (1945)
- In re Estate of Sowder, 185 Kan. 74, 340 P.2d 907 (1959)
- In re Estate of Stroble, 6 Kan. App. 2d 955, 636 P.2d 236 (1981)
- In re Estate of Holderman, 66 Kan. App. 2d 112, 577 P.3d 638 (2025)
Disclaimer: This article provides general information about Kansas law and is not legal advice. Reading it does not create an attorney client relationship with Mack & Associates, LLC. Laws change, and the outcome in any estate depends on its specific facts and the exact wording of the documents involved. Please consult a licensed Kansas attorney about your situation.
