## Facts

- Cecelia Lorenzo executed a will dividing her real-property estate equally between her brother, Jose R. Medina, and her brother-in-law, Jesus Lorenzo.
- The will provided that if Jose predeceased Cecelia, Jose’s share would pass to Jose’s wife, Juana R. Medina; if Jesus predeceased Cecelia, his share would pass to his wife, Maria Lorenzo.
- Jose and Juana both died before Cecelia; Jesus survived Cecelia.
- After Cecelia’s death, Jesus claimed the half devised to Jose (and then Juana) lapsed and should pass to Jesus as the only surviving named devisee.
- Jose and Juana’s children, Isabel Medina and Jose Antonio Medina, claimed the half share under Florida’s antilapse statute as descendants of Jose.

## Issues

1. Whether the devise of one-half of the estate to the testator’s brother, with a gift over to the brother’s spouse, lapsed when both predeceased the testator.
2. Whether Florida’s antilapse statute, Fla. Stat. § 732.603(1)(a), substituted the deceased brother’s descendants as takers of that one-half share.
3. Whether the will showed a sufficiently clear contrary intent to prevent operation of the antilapse statute.

## Decision

- The Third District Court of Appeal affirmed the probate court’s order awarding 50% of the estate to Jesus Lorenzo and 50% to Isabel Medina and Jose Antonio Medina.
- The court held that Fla. Stat. § 732.603(1)(a) applied because Jose, as the testator’s brother, was within the protected class (a descendant of the testator’s grandparents).
- The court rejected the argument that the intervening gift over to Juana, who also predeceased, by itself established an intent to bar substitution by Jose’s descendants.
- The court found no express contrary intent in the will directing that the share revert to Jesus or otherwise excluding Jose’s descendants if both Jose and Juana predeceased the testator.

## Legal Principles

- Under Fla. Stat. § 732.603(1)(a), a devise to a qualifying relative who fails to survive the testator does not lapse; it vests in the devisee’s surviving descendants unless the will expresses a contrary intent.
- A testator may prevent antilapse substitution only through a sufficiently clear expression of contrary intent in the will.
- The presence of a contingent substitutional gift to the devisee’s spouse, who also predeceases, does not alone negate application of the antilapse statute to the original qualifying devisee’s share.

## Conclusion

The court held that the will’s devise to the testator’s brother triggered Florida’s antilapse statute when the brother (and the spouse named as substitute) predeceased the testator, and—absent an express contrary intent—the brother’s children took the deceased devisee’s one-half share by substitution rather than the share passing to the surviving co-devisee.


Lorenzo v. Medina, 47 So. 3d 927 (Fla. 3d DCA 2010)