Nieces and Nephews Are Not Covered by New York's Anti-Lapse Statute (EPTL 3-3.3): What Happens If They Die Before You

If your New York will leaves property to a niece or nephew and that niece or nephew dies before you, the gift lapses. It does not pass to their children. New York's anti-lapse statute, EPTL 3-3.3, saves a lapsed gift only when the deceased beneficiary was the testator's issue, brother, or sister. A niece or nephew is none of those. The lapsed gift falls into your residuary estate, or passes to the other residuary beneficiaries, or passes by intestacy, depending on how the will is written. The fix is a short substitution clause naming who takes if the niece or nephew does not survive you.

Reviewed by Albert Goodwin, Esq., New York estates attorney, Law Offices of Albert Goodwin. Last reviewed: 2025. Statutory references are to the New York Estates, Powers and Trusts Law (EPTL), with links to the official text on nysenate.gov.

Who This Page Is For (and Who Does Not Need It)

This page covers one narrow problem: a named niece or nephew who dies before the person who made the will. You need it if your will, or a will you are a beneficiary under, names a niece or nephew directly and has no survivorship or substitution language.

You probably do not need it if your will leaves property to a brother or sister and you expect their children to take if the sibling dies first. The statute already handles that. You also do not need it if the will names an alternate beneficiary for every gift. For general will drafting in New York City, see our will attorney page. For challenges to a will, see will contests in Surrogate's Court.

What EPTL 3-3.3 Actually Says

The statute, for wills executed on or after September 1, 1992, reads in relevant part: "Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, 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." For wills executed before that date, the surviving issue take per stirpes rather than by representation. The statute opens with the words "unless the will whenever executed provides otherwise," so the will can always override it.

Two words control the scope. "Issue" means the testator's own descendants: children, grandchildren, and so on. "Brother or sister" means the testator's siblings. A niece or nephew is the issue of a brother or sister, not the issue of the testator. The statute does not reach them. New York courts read the statute by its terms and look to the testator's intent as expressed in the will itself (Matter of Fabbri, 2 N.Y.2d 236 [1957]). There is no judicial power to extend the protected class to a relative the Legislature left out.

Comparison: Who Is Protected When a Beneficiary Dies First

A lapsed gift does not vanish. It goes somewhere. Where it goes depends on whether the gift was a specific bequest or part of the residuary estate, and on whether the will names other residuary beneficiaries.

Where the Lapsed Gift Goes

A specific gift to one niece or nephew

Suppose the will says "I give my co-op apartment to my niece, Maria." Maria dies before the testator, leaving two children. EPTL 3-3.3 does not apply. The apartment falls into the residuary estate and passes under the residuary clause. If there is no residuary clause, the apartment passes by intestacy under EPTL 4-1.1. Maria's children receive the apartment only if they happen to be residuary beneficiaries or intestate distributees.

A residuary gift shared among several nieces and nephews

Suppose the residuary estate goes "to my nieces and nephews Maria, David, and Sarah, in equal shares." David dies before the testator, leaving a daughter. Because David is outside EPTL 3-3.3, his one-third share is ineffective. EPTL 3-3.4 then governs: an ineffective part of a residuary disposition to two or more beneficiaries passes to the remaining residuary beneficiaries in proportion to their shares. Maria and Sarah each take one-half of the residuary estate. David's daughter takes nothing. Many testators who name their nieces and nephews this way would have wanted David's daughter to step into his place, and the will did not say so.

A class gift to "my nieces and nephews"

If the will leaves property "to my nieces and nephews" without naming them, the gift is a class gift. Class members who survive the testator divide the gift. A niece or nephew who dies first simply drops out of the class. EPTL 3-3.3(a)(3) extends anti-lapse protection to class gifts, but only for classes made up of the testator's issue or siblings. A class of nieces and nephews gets no protection, so the children of a deceased class member are excluded.

The Opposite Result: A Gift to Your Sibling That Reaches the Niece by Statute

Now change the facts. The will leaves the estate "to my brother, John." John dies before the testator, leaving one child, Maria. John is a brother, so EPTL 3-3.3 applies. The gift does not lapse. It vests in Maria by representation. Maria inherits because the statute substituted her for her father, not because she was named.

The same niece is protected in one will and unprotected in the other. The only difference is who was named. Most testators do not want their plan to depend on this kind of drafting accident.

How "By Representation" Splits Shares Among Several Nieces and Nephews

When EPTL 3-3.3 does save a gift to a deceased sibling, or when nieces and nephews inherit by intestacy, the shares are divided "by representation" as defined in EPTL 1-2.16. The method is different from the older per stirpes method, and the difference changes dollar amounts.

Under EPTL 1-2.16, the property is divided into equal shares at the nearest generation that has a living member. Each living member of that generation takes one share. The shares of the deceased members of that generation who left issue are pooled and divided equally among those issue, as if they were one generation.

Suppose a testator leaves the residuary estate to "my brothers, Tom and Bill." Both brothers die before the testator. Tom left one child. Bill left three children. Under EPTL 3-3.3 the gift passes to the four nieces and nephews by representation. No one in the sibling generation is alive, so the first generation with a living member is the nieces and nephews. Each of the four takes one-quarter. Under per stirpes, Tom's child would have taken one-half and each of Bill's children one-sixth. Anyone reading an older New York will, or a will that uses the words "per stirpes" on purpose, must check which method applies.

When Nieces and Nephews Inherit Without a Will: EPTL 4-1.1(a)(5)

Nieces and nephews also appear in New York's intestacy statute, and the rule there explains why some families face little contest risk and others face a lot. Under EPTL 4-1.1(a)(5), if a person dies with no spouse, no issue, and no surviving parent, the estate passes to "the issue of the parents, by representation." The issue of the parents are the decedent's siblings and, through deceased siblings, the decedent's nieces and nephews.

Three consequences follow:

• Living siblings come first. If any brother or sister of the decedent is alive, the living siblings take the shares of their generation. Nieces and nephews take only the pooled share that would have gone to their deceased parent, divided by representation.
• If all siblings are dead, nieces and nephews share equally. Because the nearest living generation is the nieces and nephews, each takes an equal share regardless of how many siblings were in each family line.
• Half-blood counts. EPTL 4-1.1(b) treats relatives of the half blood the same as relatives of the whole blood, so the children of a half-sibling are nieces and nephews for intestacy purposes.

If your nieces and nephews would already take under intestacy, a will leaving the estate to them changes little, and there is no closer heir with standing to object. If you have a living spouse, child, parent, or sibling, that person would take under EPTL 4-1.1 ahead of your nieces and nephews and will generally have standing to contest. For how intestate estates are handled, see estate administration without a will.

If the Niece or Nephew Also Witnessed the Will: EPTL 3-3.2

Families sometimes ask the nephew who lives nearby to sign as a witness. That is a mistake when the nephew is also a beneficiary. Under EPTL 3-3.2, an attesting witness who receives a gift under the will is still a competent witness, and the will remains valid, but the gift to that witness is void unless there are at least two other attesting witnesses who receive nothing under the will.

There is one exception. EPTL 3-3.2(a)(3) provides that if the interested witness would have been a distributee had the will not been admitted, the witness takes the lesser of the intestate share or the gift under the will. A nephew who is already an intestate distributee, because there is no spouse, issue, parent, or living sibling of the testator, keeps the smaller of the two amounts. A nephew who is not a distributee loses the gift entirely. The simple rule is that a beneficiary should never serve as a witness.

The Clause That Fixes the Problem

You remove the lapse risk by stating in the will what happens if the niece or nephew does not survive you. A clause of this shape does the work:

"I give my residuary estate to my niece, Maria Doe, if she survives me. If she does not survive me, I give it to her issue who survive me, by representation. If none of them survive me, I give it to [named alternate]."

Points to cover in the drafting:

• Survivorship period. EPTL 2-1.6 treats a beneficiary who does not survive the decedent by 120 hours as having predeceased, unless the will provides otherwise. Some wills set a longer period, such as 30 days, to avoid a double administration.
• Representation method. Say "by representation" if you want EPTL 1-2.16 pooling, or "per stirpes" if you want each family line to take its parent's share. Do not leave it to the default.
• Class gifts. If you use the words "my nieces and nephews," add "and the issue of any niece or nephew who does not survive me, by representation." Without that phrase the children of a deceased niece or nephew are cut out.
• Final alternate. Name a last-resort taker, such as a charity or another relative, so the gift never falls into intestacy.
• Revocable trusts. EPTL 3-3.3 speaks of a "testamentary disposition." A revocable living trust needs its own substitution language and should not rely on the statute. See avoiding probate in New York.

Related Issues Covered on Other Pages

A will favoring a niece or nephew over a closer relative raises several other questions. Each is covered in depth elsewhere on this site, so only the short version appears here.

• Contest risk. A disinherited spouse, child, parent, or sibling generally has standing to object in Surrogate's Court. The usual grounds are lack of capacity, undue influence, fraud, and improper execution. Undue influence requires more than opportunity; it requires influence that amounts to moral coercion (Matter of Walther, 6 N.Y.2d 49 [1959]). See will contests and, where the niece or nephew was a caregiver, leaving an inheritance to a caretaker.
• Execution formalities. EPTL 3-2.1 requires the testator's signature at the end, two attesting witnesses, publication, and witness signatures within 30 days. Attorney-supervised execution carries a presumption of regularity. See drafting a will in New York City.
• A minor niece or nephew. A child under 18 cannot receive a substantial inheritance outright. A testamentary trust with a trustee, a distribution standard, and a stated termination age avoids a court-supervised guardianship of the property. See testamentary trusts: advantages and disadvantages.
• A surviving spouse. EPTL 5-1.1-A gives a surviving spouse the right to elect the greater of $50,000 or one-third of the net estate, including testamentary substitutes. A will leaving everything to a nephew is valid, but the spouse can claim the elective share against it absent a valid waiver.
• Tax. New York has no inheritance tax that varies by relationship. A niece is taxed the same as a child for New York estate tax purposes. What matters is the size of the estate against the basic exclusion amount and the "cliff" above 105 percent of that amount. See advanced New York estate planning techniques.

Frequently Asked Questions

Can I leave everything to my nephew if I have children?

Yes. New York law does not require you to leave anything to an adult child. Your children would be intestate distributees under EPTL 4-1.1, so they have standing to contest the will. A surviving spouse, by contrast, cannot be fully cut out because of the right of election under EPTL 5-1.1-A.

Does my sister have to be notified if I leave my estate to her son?

Not while you are alive. After your death, the person offering the will for probate must serve a citation on your distributees, the people who would inherit if there were no will (SCPA 1403). If your sister is one of your distributees because you have no spouse, issue, or parent, she must be cited and may object. If she is not a distributee, she is not entitled to notice as of right.

My aunt's will left me a share, and I am her niece. Does the anti-lapse statute protect my children if I die before her?

No. EPTL 3-3.3 protects only gifts to the testator's issue and siblings. If you die before your aunt, your gift lapses and your children take nothing unless the will names them as substitutes. You may want to raise this with your aunt while the will can still be amended.

My uncle's will left the residuary estate to three nephews. One died before my uncle. Who gets his share?

Under EPTL 3-3.4, the deceased nephew's share passes to the two surviving residuary beneficiaries in proportion to their shares, so each takes one-half. The deceased nephew's children take nothing unless the will says otherwise.

Are nieces and nephews "skip persons" for generation-skipping transfer tax?

Under federal rules, a niece or nephew is assigned to the generation one below the transferor's generation, the same as a child, so an outright gift to a niece or nephew is not a generation-skipping transfer. A gift to a grandniece or grandnephew can be. Large estates passing to the next generation down should be reviewed for GST exposure.

Speak With a New York Estates Attorney

The Law Offices of Albert Goodwin drafts wills and trusts and handles probate, administration, and will contests in the Surrogate's Courts of New York City and the surrounding counties. If your will names a niece or nephew and you are not sure what happens if that person dies first, we can review the document and add the substitution language it needs. If you are a niece or nephew whose inheritance may have lapsed, we can tell you where the gift went under EPTL 3-3.3, 3-3.4, and 4-1.1. Call 212-233-1233 or email [email protected].

About the author: Albert Goodwin, Esq. is a New York attorney whose practice concentrates on wills, trusts, estates, and Surrogate's Court litigation.

This article is general information about New York law and is not legal advice. Statutory references are to the Estates, Powers and Trusts Law and the Surrogate's Court Procedure Act as currently in effect. Figures such as the estate tax basic exclusion amount change annually. Consult an attorney about your own will or estate.