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 decedent is distributed ''per stirpes'' if each ''branch'' of the family is to receive an equal share of an estate. When the heir in the first generation of a branch predeceased the decedent, the share that would have been given to the heir would be distributed among the heir's issue in equal shares. It may also be known as strict per stirpes or the old English approach, and differs from distribution ''per capita'', as members of the same generation may inherit different amounts. In section 33 of the Wills Act 1837 in England and Wales, it is called according to their stock.

Examples

Example 1A: The testator ''A'', specifies in his will that his estate is to be divided among his 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 remoter 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 U.S. states, such as New York, a statute has modified the ''per stirpes'' approach and utilizes instead a per capita with representation approach (also known as modern American per stirpes).Wendel 2010, 31. Under the per capita with representation 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, named (respectively and appropriately) ''C1'' and ''D1'', then each of ''B1'', ''B2'', ''C1'' and ''D1'' would receive one quarter of the estate. This method is also utilized in the states of Alaska, Arizona, California, Colorado, Hawaii, Maine, Michigan, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, Utah, and West Virginia.

See also

* Stirps

References

External links

California Probate Code 245-247

{{italic title
Property law
Latin legal terminology
Inheritance