per stirpes

''Per stirpes'' (; "by roots" or "by stock") is a legal term from Latin, used in the law of inheritance and estates. An estate of a is distributed ''per stirpes'' if each ''branch'' of the family is to receive an equal share of an estate in accordance with their deceased ancestor's share. When an heir in the first generation of a branch predeceased the decedent, the share that would have been given to that heir would be distributed among that heir's issue in equal shares.

Historically, per stirpes distribution occurred at the level of the generation closest to the deceased person, whether or not there were surviving heirs within that generation. That could result in an uneven distribution of an inheritance. For example, if two first cousins represent the first generation, one having three children and the other having one child, and they are deceased at the time of the distribution, the children of the first cousin would each receive one sixth of the inheritance (one third of their deceased parent's half) while the children of the other cousin would receive half. The modern approach looks instead to the first generation with surviving heirs, which would mean that all four surviving children would each receive one quarter of the inheritance, a per capita distribution. The historic rule, where members of the same generation may inherit different amounts, is now often described as strict per stirpes, or the old English approach.

Examples

Example 1A: The testator ''A'', specifies in their will that their estate is to be divided among their descendants in equal shares ''per stirpes''. ''A'' has three children, ''B'', ''C'', and ''D''. ''B'' is already dead, but has left two children (grandchildren of ''A''), ''B1'' and ''B2''. When ''A''s will is executed, under a distribution ''per stirpes'', ''C'' and ''D'' each receive one-third of the estate, and ''B1'' and ''B2'' each receive one-sixth. ''B1'' and ''B2'' constitute one "branch" of the family, and collectively receive a share equal to the shares received by ''C'' and ''D'' as branches (figure 1).

Example 1B: If grandchild ''B1'' had predeceased ''A'', leaving two children ''B1a'' and ''B1b'', and grandchild ''B2'' had also died leaving three children ''B2a'', ''B2b'', and ''B2c'', then distribution ''per stirpes'' would give one-third each to ''C'' and ''D''; one-twelfth each to ''B1a'' and ''B1b'', who would constitute a branch; and one-eighteenth each to ''B2a'', ''B2b'', and ''B2c''. Thus, the ''B'', ''C'', and ''D'' branches receive equal shares of the whole estate, the ''B1'' and ''B2'' branches receive equal shares of the ''B'' branch's share, ''B1a'' and ''B1b'' receive equal shares of the ''B1'' branch's share, and ''B2a'', ''B2b'', and ''B2c'' receive equal shares of the ''B2'' branch's share.

Per capita at each generation

Per capita at each generation is an alternative way of distribution, where heirs of the same generation will each receive the same amount. The estate is divided into equal shares at the generation closest to the deceased with surviving heirs. The number of shares is equal to the number of original members either surviving or with surviving descendants. Each surviving heir of that generation gets a share. The remainder is then equally divided among the next-generation descendants of the deceased descendants in the same manner.

Example 2A: In the first example, children ''C'' and ''D'' survive, so the estate is divided at their generation. There were three children, so each surviving child receives one-third. The remainder – ''B''s share – is then divided in the same manner among ''B''s surviving descendants. The result is the same as under ''per stirpes'' because ''B''s one-third is distributed to ''B1'' and ''B2'' (one-sixth to each).

Example 2B: The ''per capita'' and ''per stirpes'' results would differ if ''D'' also pre-deceased with one child, ''D1'' (figure 2). Under ''per stirpes'', ''B1'' and ''B2'' would each receive one-sixth (half of ''B''s one-third share), and ''D1'' would receive one-third (all of ''D''s one-third share). Under ''per capita'', the two-thirds remaining after ''C'''s one-third share was taken would be divided equally among all three children of ''B'' and ''D''. (Two-thirds = six-ninths) Each would receive two-ninths: ''B1'', ''B2'', and ''D1'' would all receive two-ninths.

''Notes:''
*To give the effect indicated in these examples the clause should also include a provision that no beneficiary being a grandchild or more remote descendant will take a share if his or her parent is alive and takes a share.
*The spouses of the children (that is, spouses of ''B'', ''C'', and ''D'') are not considered. Spouses are not a part of the branch. Therefore, even if ''B'', ''C'', or, ''D'' died leaving a spouse as well as children, all (100%) of the assets pass to the children and (0%) nothing passes to the spouses of ''A''s children ''B'', ''C'', and ''D''. From the example above, if ''A''s child ''B'' died before ''A''s death, ''A''s grandchildren ''B1'' and ''B2'' would each receive half of ''B''s share. Even if ''B'' had a living spouse at the time of ''A''s death, that person would receive nothing from ''A''s estate.

Per capita with representation

In many US states, a statute has modified the ''per stirpes'' approach and uses instead a per capita with representation approach (also known as modern American per stirpes).Wendel 2010, p. 31. Under this approach, the number of branches is determined by reference to the generation nearest the testator which has a surviving descendant. Thus, in the first example, if ''C'' and ''D'' also are already dead, and each left one child, ''C1'' and ''D1'' respectively, then each of ''B1'', ''B2'', ''C1'' and ''D1'' would receive one quarter of the estate. This method is used in the states of Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, New Jersey, New Mexico, New York, Ohio, Oklahoma, Pennsylvania, Utah, and West Virginia.

See also

* Stirpes

Notes

References

External links

California Probate Code 245-247

{{italic title
Property law
Latin legal terminology
Inheritance