EPTL § 3-3.3

Disposition to issue or brothers or sisters of testator not to · as in force on May 31, 2026

§ 3-3.3 Disposition to issue or brothers or sisters of testator not to

lapse; application to class dispositions

(a) Unless the will whenever executed provides otherwise:

(1) Instruments executed prior to September first, nineteen hundred ninety-two. Whenever a testamentary disposition including a disposition of a future estate other than a future estate subject to a condition precedent of surviving the testator is made to a beneficiary who is one of the testator's issue or a brother or sister, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, by representation.

(2) Instruments executed on or after September first, nineteen hundred ninety-two. Whenever a testamentary disposition including a disposition of a future estate other than a future estate subject to a condition precedent of surviving the testator is made to a beneficiary who is one of the testator's issue or a brother or sister, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, by representation.

(3) The provisions of subparagraphs (1) and (2) of this paragraph apply to a disposition made in the form of a class gift other than a disposition to "issue,""descendents," or a class described by language of similar import, as if the disposition were made to the beneficiaries by their individual names, except that no benefit shall be conferred hereunder upon the surviving issue of an ancestor who died before the execution of the will in which the disposition to the class was made.

(b) As used in this section, the terms "issue", "surviving issue" and "issue surviving" include adopted children and their issue to the extent they would be included in a disposition to "issue" under 2-1.3 and subdivision two of section one hundred seventeen of the domestic relations law, and nonmarital children; for this purpose, a nonmarital child is the child of his mother and is the child of his father if he is entitled to inherit from his father under 4-1.2.

Official sourcehttps://www.nysenate.gov/legislation/laws/EPT/3-3.3

In plain English

A will gift to the testator's issue, brother or sister who dies before the testator leaving issue passes to that beneficiary's issue instead of lapsing.

(a)(1)–(2) Unless the will provides otherwise, a gift (including a future estate not conditioned on surviving the testator) to the testator's issue, brother or sister who dies before the testator leaving issue surviving the testator does not lapse; it vests in that surviving issue by representation. ★ The same rule applies to instruments executed before or on or after September 1, 1992.
(a)(3) It also applies to a class gift as if the members were named, except a gift to "issue," "descendants" or similar language, and it gives nothing to the issue of a class member who died before the will was executed. ★
(b) "Issue" includes adopted children and their issue to the extent included under § 2-1.3 and Domestic Relations Law § 117(2), and nonmarital children; a nonmarital child is the mother's child, and the father's child if entitled to inherit from him under § 4-1.2.

Marked in the text: penalties, time limits, sums of money. Editorial emphasis added by this edition; it does not appear in the statute as enacted.

In print

This provision appears in Volume 1 — The Surrogate's Court in Plain English; Volume 3 — The Surrogate's Court: Court Rules & the EPTL; Volume 5 — Your Career: Surrogate's Court in Plain English.