A Lapse in Judgment: Ruotolo v. Tietjen and Interpretation of Connecticut's Anti-Lapse Statute

19 Pages Posted: 14 May 2007

See all articles by Jeffrey A. Cooper

Jeffrey A. Cooper

Quinnipiac University School of Law


The Connecticut case of Ruotolo v. Tietjen concerns a will providing a bequest to a named individual "if she survives" the testator, language commonly employed in traditional estate planning documents. The named beneficiary did not survive the testator, raising the question of who should receive her "lapsed" bequest. Connecticut's "anti-lapse" statute drafted in 1821, provided that the beneficiary's surviving children would take the bequest unless the will effectively directed another result. The crucial question therefore was whether the affirmative condition "if she survives" negated operation of this default statute. The Connecticut Appellate Court, in a case of first impression, concluded that such words of survivorship failed to effectively negate application of the anti-lapse statute. The Supreme Court agreed, affirming the Appellate Court's opinion and sending shockwaves through the state's estate planning bar.

In this Article, I contend that the Appellate Court's opinion reached the wrong result, and that the Connecticut Supreme Court was unwise to embrace it. The judges of the Appellate Court adopted a widely-criticized minority rule without indicating, and perhaps without even realizing, they were doing so. The result potentially impacts the future interpretation of countless existing estate planning documents and leaves the Connecticut bar struggling to respond. In addition, the opinion casts a wider pall by according too little respect to the traditional role of estate planning attorneys in communicating their client's testamentary desires, while giving too much deference to the modern proposals reflected in the 1990 version of the Uniform Probate Code (hereinafter "the UPC"). While the case most directly impacts Connecticut probate practice, it implicates broader themes concerning the interaction between traditional estate planning principles and modern probate legislation.

Keywords: lapse, anti-lapse, bequest, devise, predeceased, testator, Connecticut, estate, will, Ruotolo, Tietjen

JEL Classification: K11, K39

Suggested Citation

Cooper, Jeffrey A., A Lapse in Judgment: Ruotolo v. Tietjen and Interpretation of Connecticut's Anti-Lapse Statute. Quinnipiac Probate Law Journal, Vol. 20, 2007, Available at SSRN: https://ssrn.com/abstract=986146

Jeffrey A. Cooper (Contact Author)

Quinnipiac University School of Law ( email )

275 Mt. Carmel Ave.
Hamden, CT 06518
United States
203-582-3731 (Phone)

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