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When Is a Survivor Not a Survivor?

James W. Martin, P.A.

A recent Florida probate case answered the question “When is a survivor not a survivor?”

In Chauncy v. Gorden, 374 So.3d 884 (Fla. 5th DCA), the appellate court upheld the trial court’s determination that “use of the word ‘survivor’ in a will referred to the survivor of the two persons named in the will, not the heirs of those persons.”

In this case, the will apparently left the estate to two people “or the survivor of them”. One of them died before the maker of the will died. The case was filed by Chauncy, the son of the beneficiary who had died, and Chauncy claimed that “survivor” means any heirs of named beneficiaries. Both the trial court and the appellate court declined to agree with that position. The appellate court said:

There was nothing in the will or other circumstances to show that the word ‘survivor’ intended to be given any meaning other than its common one….Generally, the word ‘survivor’ should be given its literal interpretation as meaning one who outlives another, one of two or more persons who live after the other or others have died…The term ‘survivor’ is limited to the individuals of such a class, and does not include their children…Using the term ‘survivor’ will generally exclude representatives so that the last survivor of a class will take the whole share of one dying although others of the class have all died leaving issue.

Chauncy v. Gorden, 374 So.3d 884 (Fla. 5th DCA)

This is an interesting case. Who knew the word “survivor” was ambiguous, requiring a court to determine its meaning? Perhaps the will should have been more explicit by saying if either of the named beneficiaries predeceased the testator, then the gift to that person lapses and passes to the other person. Hindsight is 20-20, again.

-James W. Martin, St. Petersburg Probate Attorney February 24, 2024

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