Ademption

Ademption is a term used in the law of wills to determine what happens when property bequested under a will is no longer in the testator's estate when the testator dies. For devises of specific items of property, called specific gifts the property is adeemed, and the gift fails. If, for example, the will bequeathed the testator's car to a specific person, but the testator owned no car at the time of his death, then the gift would have been adeemed and the beneficiary would receive no gift at all. However, if the testator acquired a replacement for a specifically devised property, the beneficiary would be entitled to that replacement.

A general devise or general gift - gifts of cash amounts - are never adeemed. If there is not enough cash in the testator's estate to satisfy the gift, then other assets in the residuary estate are sold to raise the necessary cash.

Some property lies in a gray area, where the testator's specific intent must be determined. For example, where the testator bequests "500 shares of stock" in a company, this may be read as a general devise (that the estate should purchase and convey the particular stocks to the beneficiary), or it may be read as a specific devise, particularly if the testator used a possessive ("my 500 shares"). Such a gift is deemed to be a demonstrative gift. Such demonstrative gifts are deemed to be a hybrid of both specific and general gifts. If one were to bequeath "500 shares of stock," most states would deem that to be a demonstrative gift. The resultant gift to the heir receiving "500 shares," would be the date of death value of 500 shares of that particular stock.

Ademption may also be waived if the property leaves the estate after the testator has been declared incompetent. Furthermore, in some cases the beneficiary will be entitled to the proceeds from the sale of property, or to the insurance payout for property that is lost or destroyed.

To avoid confusion as to what may or may not be adeemed, it is advisable that the phrase "if owned by me at my death" be placed into the articles of a will in which property is being bequeathed.

As for the sale of land under an executory contract, traditional case law agrees that ademption occurs upon the death of the testator and that the proceeds of sale, when the closing, occurs should not pass to the specific devisee of the property. However, the more modern view and the Uniform Probate Code, which has been adopted by some states, disagrees. These jurisdictions find that when property subject to specific devise is placed under contract of sale before the decedent's death, the proceeds of the sale will pass to the specific devisee.