Legal Lexicon: What Is a Devise?

Paul Labiner, Esq.

Paul Labiner, Esq.

Managing Partner

Apr 14, 2022

Every industry has a set of terms and phrases that industry insiders use to talk about their field. Some of these terms are actually useful, but others have become mere buzzwords that may or may not have any real meaning (what exactly is synergy anyway?)

The legal arena is an especially egregious offender when it comes to cryptic verbiage. Not only is the writing itself quite dense, but the use of archaic phrases and “terms of art” can make some legalese nearly incomprehensible to non-lawyers. Worse still, many legal “terms of art” are also words and phrases we use in everyday speech, but often with quite different meanings.

And yet, it’s important to know certain legal terms so you can understand your estate planning options and make the proper decisions about your financial legacy.

The term “devise” is one such word. In fact, devise is used 172 times across Florida Statutes Ch. 731–740, the chapters that concern estates, wills, and trust. So, let’s look at what it means, how it’s used, and why it’s important for estate planning in Florida.

DEVISE [de-vise] | /di-‘vīz/

First, let’s look at the actual definition as it’s given in Sec. 731.201(10), Fl. Stat. (italics mine):

“Devise,” when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will or trust. The term includes “gift,” “give,” “bequeath,” “bequest,” and “legacy.” A devise is subject to charges for debts, expenses, and taxes as provided in this code, the will, or the trust.

I think the verb’s definition is the easier to understand since it doesn’t introduce any additional specialized terms. So, as a verb, to devise essentially means “to give away an asset in a will or trust.” Give in this definition could be replaced by a handful of synonyms such as allocate, bestow, bequeath, or gift.

You might see or use devise as a verb in a sentence like: “To my niece, Emma, I devise $10,000.”

Unfortunately, the noun’s definition introduces another specialized term “testamentary disposition,” which is a fancy way of saying a situation in which a will or trust controls the distribution of the estate (as opposed to “intestate” meaning “without a will”).

So, in plain language, devise as a noun means “an asset that is allocated, bestowed, bequeathed, or gifted in a will or trust.” As is often the case, the noun is just a thing that undergoes the action of the verb (e.g. a gift is something that is gifted). You might use the noun in a sentence like: “To my niece, I leave a devise of $10,000.”

Devisee and Residuary Devise

There are two additional terms built from devise: “devisee” and “residuary devise.”

“Devisee” simply means the person that will receive a devise or gift—in the previous example sentence, “my niece.” Basically, a devisee is a beneficiary.

“Residuary devise” is a bit more complicated. In effect, it is the remainder of the estate’s assets after the completion of any provisions that require specific types, kinds, or sums of assets. If there are no provisions like this, then the residuary devise or “residue” is the remainder of the assets after paying out any debts or liabilities of the estate.

Putting it all together then, we can make a pretty silly example sentence: “I devise a devise of $10,000 to the devisee.” But, we should probably rewrite it in a more comprehensible way as: “I leave a gift of $10,000 to my niece.”

Why Definitions Matter

You may be asking why these kinds of definitions matter. If we all know what each other is saying, why have such specific definitions?

In short, the majority of civil lawsuits hinge on the definitions of terms and phrases, meaning that, if someone were to contest your will or initiate other estate litigation, it’s very likely that a definition of some term, some where will be up for debate.

This is why these definitions are so critical. The sloppy and careless use of terms and phrases in your estate planning documents can give potential predators the ammunition they need to bring a lawsuit again your estate.

Protection from Improperly Drafted Documents

Now, I don’t expect you to have an encyclopedic knowledge of every estate planning–specific term. But understanding some of the most common terms, and knowing why their definitions are so precise, can underscore the benefits of working with an experienced and diligent estate planning attorney.

From the client’s perspective, a primary motivation for making an estate plan is to exercise control over the disposition of their assets and property. However, from my perspective as an estate planning attorney, there is a second, equally important, goal: To prevent estate disputes and litigation.

When you are ready to discuss the devises you want to devise to which devisees, I am here to help. Call me at 561-998-2362 or email me directly at Paul@PLabinerEsq.com. I look forward to hearing from you.

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