Also known as: per stirpes distributions · per stirpes · by the roots · by branch
Written by attorneys · grounded in primary & secondary sources — see below
A method of distributing property to descendants by representation. The property is divided into equal shares at the first generation of descendants of the designated ancestor. Each surviving member of that generation receives one share. The share of any deceased member who left surviving descendants is subdivided in the same manner at each succeeding generation until the property is fully allocated.
Dr. Helen Moore's revocable trust directed that clinic interests pass to her issue per stirpes. She was survived by her son Megan and by three grandchildren through her predeceased daughter. The trustee divided the interests into two equal shares at the children's generation. Megan received one share outright while the grandchildren divided the second share equally.
A testator created a trust that terminated twenty-one years after the death of his last grandchild and directed income to issue by right of representation. One grandchild predeceased the termination date leaving two children who survived. The trustee allocated the income share that would have gone to the deceased grandchild equally between those two surviving great-grandchildren.
Select any source to read its text and confirm it supports the definition.
Per stirpes divides property into shares at the first generation of descendants and then subdivides any deceased member's share among that member's descendants. Per capita at each generation first counts all living descendants in the nearest generation to the ancestor and divides shares equally among them before moving to more remote generations.
Supporting sources
Yes. When a disposition couples the term children with a direction for per stirpes distribution, the language is internally inconsistent and the word children is construed to mean issue so that descendants of a deceased child may take by representation.
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An individual who is deceased and left no surviving descendant is disregarded. The share that would have passed to that individual is not created and the property is allocated only among the lines that have surviving descendants.
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Yes. When a trust instrument directs income to issue by right of representation, the same generational division used for corpus applies to income payments so that descendants of a deceased grandchild receive the share that would have gone to that grandchild.
Supporting sources
…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…