Also known as: take by representation · taken by representation · takes by representation · per stirpes
Written by attorneys · grounded in primary & secondary sources — see below
A method of allocating shares in an estate or trust among the descendants of a designated ancestor whereby the descendants of any deceased child take that child's share by substitution.
Theodore Tucker created a trust directing distribution of the residue to his issue per stirpes. At distribution Theodore's son Thaddeus had already died leaving two children while Theodore's daughter Tara survived. The trustee divided the property into two equal shares at the child generation and allocated one share outright to Tara while subdividing the other share equally between Thaddeus's two children.
Tiffany Torres's will left the family farm to her siblings' descendants by representation. Tiffany's brother Tobias had predeceased her leaving one child while her sister Talia survived. The court allocated one share to Talia and the remaining share to Tobias's child rather than dividing the property only among living siblings.
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Taking by representation divides the property first at the nearest generation containing survivors and then subdivides any deceased ancestor's share among that ancestor's descendants at each succeeding generation. Per capita at each generation instead recombines all remaining shares after the initial division and redistributes them equally among survivors in the next generation.
Supporting sources
An adopted child is treated as a child of the adopting parent for purposes of class gifts and representation unless the governing instrument or surrounding circumstances establish a contrary intention. Adult adoption without prior co-residence or ongoing involvement may supply evidence of contrary intent that prevents the adopted line from taking a full branch share.
Supporting sources
Modern antilapse statutes create a substitute gift in the predeceased class member's surviving descendants who then take the share by representation. The will's silence on survival or substitution allows the statute to operate and prevents the share from lapsing into the residue or to other class members.
Supporting sources
…said son should predecease him, the Trustee shall pay the net income derived from the trust fund unto the lineal descendants, per stirpes , from time to time living, of the Grantor’s said son until the death of the last surviving child of the Grantor’s said son, who shall be living at the time of the Grantor’s death, and upon…