A father leaves his sailboat to his son in a will signed a decade before he dies. By the time he passes away, he sold the boat years earlier and never updated the document. Under the doctrine of ademption, that gift may simply fail, and the son may receive nothing in its place, even if the father would have wanted him to have the proceeds or a comparable amount.
How Ademption Works
Ademption by extinction applies when a specifically identified item of property named in a will no longer exists in the estate at the testator's death, whether because it was sold, given away, destroyed, or otherwise disposed of during life. Because the gift was tied to that particular asset rather than a dollar value, New York generally treats the gift as failed rather than substituting other estate assets of equivalent value, absent specific statutory exceptions or contrary language in the will.
Limited Statutory Protections and Their Boundaries
New York law provides some narrow protections in specific situations, such as insurance proceeds paid after death for a specifically bequeathed item that was destroyed (EPTL 3-4.5) or the proceeds of a sale made by a guardian during the testator's incapacity (EPTL 3-4.4), but these exceptions are limited and are not a substitute for careful drafting. A testator who wants a beneficiary protected against ademption needs to address it directly, either by using a general or demonstrative bequest instead of a strictly specific one, or by adding language that provides an alternate or equivalent gift if the named asset is gone.
- Review specific bequests periodically to confirm the named asset still exists and is still owned
- Consider whether a general bequest of value would better protect the intended beneficiary than a specific item
- Add contingency language providing an equivalent gift if a specifically named asset is no longer part of the estate
- Update the will promptly after selling or giving away any asset named as a specific bequest
- Discuss with beneficiaries whether they understand a specific gift could fail entirely if the asset changes hands
Why Old Wills Are Especially Vulnerable
Ademption risk grows every year a will goes without review, since life circumstances change but old language does not update itself. A will drafted decades ago that still lists specific accounts, vehicles, or property the testator no longer owns is a common source of unintended disinheritance. Periodic review is part of how we maintain wills for long-term clients.
If your will contains specific gifts of property you no longer own, or you are not sure whether ademption could defeat a bequest you care about, we can review and update the language. Call Schwartsman Law Group at (212) 518-3868 or schedule a free consultation.
