Estate planning law and legal documents sometimes state that property should be distributed per stirpes, meaning that when someone dies before someone they would inherit from, their descendants should receive their inheritance. This practical rule is designed to account for what someone would have wanted to happen to their property if, for example, their child dies before them, but that child has children (grandchildren).
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When Might You See the Term Per Stirpes?
Lawyers, judges, and lawmakers use the phrase per stirpes in various legal documents and proceedings. It is a system for apportioning shares when a named per stirpes beneficiary, meaning someone the document declares is entitled to a share, dies before property is distributed.
For example, Texas intestate succession law, which determines how to distribute assets to heirs when someone dies without a valid will, uses a system called per capita with representation, a variation on traditional per stirpes.
In the event of the beneficiary’s death, the share is distributed across their remaining heirs. You can incorporate per stirpes designations into documents like:
- Wills,
- Trusts, and
- Beneficiary designations for life insurance policies and retirement accounts.
Understanding what the per stirpes system means in these documents can help you create a complete estate plan that addresses what should happen to property if one of your beneficiaries predeceases (dies before) you.
What Systems Can You Use to Determine Shares in Estate Planning?
Estate planning involves making plans for what should happen to your property when you die. When you make those decisions, it is essential to account for the possibility that changes will occur, such as someone you designated as an heir dying before you. Per stirpes is one among three interrelated systems to resolve how to distribute their shares:
- Per capita (per head), which evenly divides shares between heirs;
- Per stirpes (by representation), which divides shares by following the family line of each deceased descendant with living children or grandchildren; and
- Per capita with representation, sometimes also confusingly called per stirpes, which refines the original per stirpes system to distribute shares per generation rather than per line.
Given the contradictory overlap in language, understanding how each designation works is essential to making an informed decision about using per stirpes.
For all systems, begin by creating a family tree with the primary deceased individual (“decedent”) at the top. Include all of the decedent’s descendants, living and dead—children, grandchildren, great-grandchildren, and so on. The systems vary in how they distribute shares that would have gone to each deceased descendant with living children or grandchildren. But they all begin from the starting generation, the first horizontal row down from the decedent with at least one living individual.
What Does Per Capita Mean?
Under the per capita distribution system, you determine shares by dividing the estate equally among all heirs, one share per head. To determine your heirs:
- Assign each living individual in the starting generation a share;
- Identify each deceased descendant with living children or grandchildren;
- Follow each of their branches, one at a time, as if the deceased descendant were the top of a new family tree to assign shares; and
- Distribute the estate evenly to all heirs.
So, in a family with a deceased descendant who left living children or grandchildren, living children would get equal shares to the deceased descendants’ living siblings, their aunts or uncles.
What Does Per Stirpes Mean?
The per stirpes system passes shares down family lines. Under the per stirpes system, you determine shares by, at the starting generation:
- Assigning shares evenly between each living descendant and each deceased descendant with living children or grandchildren;
- Moving the share down the deceased descendant’s branch as if they were the initial decedent, and the share you just assigned to them is the entire estate; and
- Assign shares to their living descendants, dividing evenly as if the deceased descendant were at the top of the family tree.
If any descendant has no living children or grandchildren, you return their share to the pool at their level.
So, in a family where a deceased descendant has living children or grandchildren, their share would pass down the line to their descendants.
What Does Per Capita with Representation Mean?
The per capita with representation system is a refinement of per stirpes, and you may even sometimes see this system called per stripes. Under per capita with representation, you determine shares by, at the starting generation:
- Dividing shares evenly between each living descendant and deceased descendant with living children or grandchildren;
- Assigning a share to each living descendant at that level;
- Adding together the shares of each deceased descendant who left living children or grandchildren;
- Moving to the next generational level, grandchildren or great-grandchildren; and
- Dividing shares evenly.
In per capita with representation, we follow the per stirpes system but add leftover shares together at each generation rather than following their lines.
Why Use Per Stirpes?
Many people choose to use per stirpes to ensure that their assets stay within each child’s family line, even if that child passes away before they do. Per stirpes can be especially useful if you have children and grandchildren and want to avoid updating your will every time a family member’s status changes.
Build a Thoughtful Estate Plan
Understanding per stirpes and systems like it can help you make informed decisions while you create your estate plan. At Massingill, we believe estate planning should not be confusing or overwhelming. That is why we take the time to explain every option, including per stirpes, in plain language. Our experienced team helps you make decisions that protect your legacy and provide peace of mind for the people you love most.
Contact Massingill today to learn more.
Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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