If I Ask if Your Will Has “Per Stirpes,” It’s Not a Personal Quesion

As I recently went through my estate planning 101 routine to a pair of prospective clients , I happened to drop in the phrase “per stirpes.”  I try to avoid legalese in my initial client conferences, but some terms are unconscious and unavoidable for estate practitioners who spend a significant time parsing through complex legal scenarios facing their clients.  One of the prospective clients abruptly interrupted me and said, “Whoa now, I thought we just came to talk about doing a Will.”  In jest, I assured him that he could not catch anything and there was no need to get tested when he left our meeting.  Notwithstanding this humorous exchange, “per stirpes” is an important legal phrase which can be found, or some drawn out phrasing which amounts to its equivalent, in a large number of Wills and should be part of any discussion surrounding the drafting of Wills.    

So what does this hideous legal term mean?  Most legal dictionaries will tell you that “per stirpes” simply means “by representation.”  As legal terms tend to be, it is a Latin word which literally translates to “by branch.”  Representation of what you may ask?   In an estate planning context, it would be by representation of a predeceased heir of a decedent.    

For example, if you leave all of your money to your children Sue and Bob in equal shares, per stirpes, and Bob has predeceased you, his child or children will inherit his share “by representation.”  This is the inverse of another estate planning distribution scheme known as “per capita” which is Latin for “by the head.” A simpler way to describe per capita distribution and the language I prefer in drafting is “to the survivor/s among them,” because as I will explain below, per capita is a bit of a misnomer as “per capita by representation” is now sometimes used to refer to modern day per stirpes.  As an aside, a well-drafted Will or other testamentary document also needs to define what it means to be a survivor. In any case, in our example above, under a per capita distribution scheme, Sue would inherit all of your money and Bob’s children, if any, would not represent Bob and instead would be what we call in the law, S.O.L. – a little known phrase spoke only by the most eloquent of estate planners.  

This all seems very straightforward, right?  In an example such as the above, it is about as straightforward as stated. However, when there are multiple generations of predeceased heirs, per stirpes becomes much more complicated and there are actually three derivatives of per stirpes: 1) strict English per stirpes; 2) modern American per stirpes (sometimes referred to as per capita with representation); and 3) modern American per stirpes with representation at each generation (sometimes referred to as per capita with representation at each generation). 

To understand the difference between these variations of per stirpes, take a hypothetical involving your great grandchildren. Using our first example, let us suppose that your children Sue and Bob have predeceased you. Sue left one living child named Steve (your grandchild). Bob had two children, Kim and Carl, both of whom have also predeceased you. Kim left two living children, Cindy and Mark (your great grandchildren). Carl left one living child, Dave (also your great grandchild). In estate work it is often helpful to draw a family tree, notating who is living or deceased of the heirs to keep track of the hypothetical. 

Using strict per stirpes, Steve would receive one-half of your property, Dave one-fourth, and Cindy and Mark each one-eighth. With strict English per stirpes the shares are divided at the first generation below the decedent regardless of whether any one is alive at that generation. In our example, no one is alive – you children Bob and Sue are both deceased; however, the shares are divided at that level in two halves, one for each child. Sue’s half drops to her son Steve, while Bob’s half is subdivided into fourths for his two predeceased kids, Kim and Carl. Dave gets his Dad Carl’s fourth and Cindy and Mark split their Mom Kim’s fourth and end up each with an eighth. Strict English per stirpes honors the generation closest to the decedent, even if all of the heirs at that generation are deceased. 

With modern American per stirpes aka. per capita with representation, Steve and Dave would get one-third and Cindy and Mark would each get one-sixth. The difference being the generation at which the shares are first divided. With modern per stirpes, the shares are divided at the first level with a living person. In our example this would be your grandkids, since your children Sue and Bob are both deceased. The first generation with a living person is your grandchildren since one grandchild Steve is alive. At that generation, there are three shares, one for Steve and one each for Kim and Carl (Bob’s deceased children). Accordingly, Steve gets his third, Carl’s one-third would drop down to his living child Dave, and Cindy and Mark would split Kim’s one-third and each receive one-sixth. This variation honors the closest generation to the decedent with a living person. The outcomes are often the same between strict English and modern American per stirpes, but if there is a preference, spelling it out is always the best idea. General per stirpes or by representation language in a Last Will will likely be interpreted to take the modern American approach absent a clear intent to the contrary, but one could certainly adopt the old English strict variation through a carefully drafted Will. 

Finally, there is modern American per stirpes at each generation aka per capita with representation at each generation. Using this scheme, Steve still gets one-third, but Cindy, Mark and Dave each receive two-ninths. Just like modern American per stirpes, the shares are divided at the first level with a living person. Therefore, Steve still gets his third.  However, with representation at each generation the shares of Kim and Carl, a third each, are added together because they are deceased and then the combined share drops down in unison to be split equally at the next generation. So, Kim and Carl’s shares are combined to make two-thirds. The two-thirds is then divided equally among Kim and Carl’s kids, Cindy, Mark and Dave, to give them each two-ninths.  Essentially, representation at each generation is intended to treat the lowest generation equally and not disadvantage descendants with many siblings. In our example, under modern per stirpes, Dave received a greater share as the only child of his deceased Dad, Carl. Modern per stirpes with representation at each generation equalizes this outcome. 

If you die without a Will in North Carolina, the default scheme under the Intestate Succession Act is the latter, modern American per stirpes at each generation aka per capita with representation at each generation. However, it is typically preferred by clients to pay homage to the closer generations by providing their representative share to their children regardless of number. And so, there you have it, one more reason among many to make sure you have a carefully drafted Will. 

To speak with an estate planner about preparing or revising your Will, call any one of our Law Firm Carolinas office locations.