Also known as:per stirpes · per stirpes distribution
Written by attorneys · grounded in primary & secondary sources — see below
An intestate or donative distribution system that divides property into shares equal to the number of the designated ancestor's surviving children and deceased children who left surviving descendants. Each surviving child receives one share. The share of each deceased child is divided equally among that child's surviving descendants, with the process repeating at each succeeding generation until the property is fully allocated.
Sources & Authorities
How it applies
Common Examples
2
Trust Default Distribution After Failed Appointment
Rafael created an irrevocable trust directing that vessel interests pass in default of appointment to his then-living issue per stirpes. Marisol held a general testamentary power but her attempted appointment to an excluded joint venture failed. The trustee must divide the interests into shares based on Rafael's surviving children and any deceased children who left surviving descendants, allocating one share to each surviving child and subdividing the share of any deceased child among that child's descendants.
Income Distribution During Trust Tail Period
A testator directed that trust income during the twenty-one years after the death of the last grandchild go to the issue of deceased grandchildren by right of representation. The court determined that the same group entitled to the corpus on termination also receives the income during the tail period, so each line descending from a grandchild receives its proportional share under the per stirpes allocation.
Select any source to read its text and confirm it supports the definition.
Uniform Acts
Restatements
Casebooks
Dewire v. Haveles534 N.E.2d 782 (Mass.1989)
Common questions
Frequently Asked
4
How does English per stirpes differ from modern per stirpes or per capita at each generation?+
English per stirpes always begins the division at the children of the designated ancestor, treating each line of descent equally regardless of how many survivors exist in later generations. Modern per stirpes and per capita at each generation instead begin the division at the nearest generation that contains at least one living descendant, producing more equal shares among cousins when some lines have died out.
Supporting sources
When a governing instrument uses the phrase per stirpes, which form of representation applies?+
Courts and the UPC treat the phrase as calling for English per stirpes, which fixes the root generation at the children of the designated ancestor and divides shares vertically by branch. This construction prevails over the default representation rule in the state's intestacy statute.
Supporting sources
Does English per stirpes apply only to intestate succession?+
No. The same division rule governs donative instruments that expressly direct per stirpes distribution, including trusts and powers of appointment that contain a gift in default to issue per stirpes.
Supporting sources
What happens to a share when a child in the root generation has no surviving descendants?+
That child is disregarded entirely. The initial division counts only surviving children and deceased children who left surviving descendants, so the property is allocated solely among the qualifying lines.
Supporting sources
534 N.E.2d 782 (Mass. 1989)Wills Trusts and Estates
…of trust income and principal (after the death of the testator and his wife) points to equal treatment of the testator’s issue per stirpes, there is a sufficient contrary intent shown to overcome the rule of construction that the class gift of income to grandchildren is given to them as joint tenants with the right of…