Per Stirpes

Per stirpes is Latin for "by branch," and as a distribution instruction it means that if a named beneficiary dies before you, their share flows down to their own descendants instead of being reallocated to your surviving beneficiaries. Name three children per stirpes, and if one predeceases you, that child's share is divided among that child's children. Name the same three children without it, and the survivors typically take everything.

The complication, and it is not a technicality, is that the phrase has no single national meaning. It is defined by the instrument that uses it and, where the instrument is silent, by the law of the governing state, and states have adopted genuinely different systems under overlapping names. Florida Statutes section 732.104 is titled "Inheritance per stirpes" and provides that "descent shall be per stirpes, whether to descendants or to collateral heirs," making it the state default without ever spelling out the arithmetic. California Probate Code section 246(b) makes "per stirpes," "by representation" and "by right of representation" synonyms for one particular method, and section 247 gives a second, different method its own name. Massachusetts and Maine, both of which adopted the Uniform Probate Code, use a third arrangement again: their intestate default is the equalizing method, while an instrument saying "per stirpes" gets the same result California reaches. Same words, different statutes, and the arithmetic follows the statute rather than the phrase.

The three systems, distinguished by one question: where does the first division happen?

Strict per stirpes divides the estate at the generation of the named children, whether or not any of them is still alive. California Probate Code section 246(a) states it exactly: the property "shall be divided into as many equal shares as there are living children of the designated ancestor, if any, and deceased children who leave issue then living," with each deceased child's share divided the same way among that child's descendants. The branch is fixed at the children's level and the size of a grandchild's inheritance depends entirely on how many siblings they have.

Division at the nearest surviving generation, sometimes called modern per stirpes or per capita with representation, starts one level lower when it has to. California Probate Code section 240, the state's intestate default, divides into as many shares as there are "living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living." If any child survives, this produces the same answer as strict per stirpes. If no child survives, it does not: the first division happens at the grandchildren's generation and every grandchild takes an equal share regardless of family size.

Per capita at each generation takes the equality principle further. California Probate Code section 247(a) divides at the nearest generation with a living member, allocates one share to each living member there, and then provides that "the remaining shares, if any, are combined and then divided and allocated in the same manner among the remaining issue." Massachusetts General Laws chapter 190B section 2-106, titled "Representation," uses the identical "combined and then divided" mechanic, and Maine's corresponding section is titled outright "Per capita at each generation." The effect is that everyone in the same generation who inherits at all inherits equally, regardless of which branch they came from. This is the Uniform Probate Code's chosen system for intestacy.

Which phrase gets you which system is a matter of state drafting, and the states have not agreed. Massachusetts and Maine both apply the equalizing method when someone dies intestate, but both provide separately that a governing instrument calling for property to be distributed either "per stirpes" or "by representation" divides at the children's generation, which is strict per stirpes. So in those states a family with no will is treated one way and the same family with a beneficiary form is treated another. California reaches the same answer as those instrument rules for all three of "per stirpes," "by representation" and "by right of representation," but its intestate default is a third method again, the section 240 nearest-generation division. The practical rule that survives all of this: read the definition in the instrument first, then the governing state's statute, and never assume a phrase you have seen defined in one state means the same thing in another.

Beneficiary-form "per capita" is a fourth usage. On a retirement account or insurance beneficiary designation, the choice offered is often per stirpes or per capita, and there "per capita" typically means something narrower than any of the probate systems: a deceased beneficiary's share is redistributed among the surviving named beneficiaries, with nothing passing to the deceased beneficiary's descendants at all. That is a real and common option, and it is not what per capita means in a probate code. Forms also vary in what per stirpes options they offer and how they define them, so the definitions printed on the form itself are the operative ones.

The retirement-account consequence people miss. A per stirpes designation does not merely allocate dollars; it creates contingent beneficiaries who may become actual beneficiaries at your death. For a retirement account that raises a separate question with its own rules: whether those substituted takers count as beneficiaries for the required minimum distribution rules. Under Treasury regulation section 1.401(a)(9)-4, a beneficiary is taken into account if they were designated under the plan as of the date of death and none of the disregarding events has occurred by September 30 of the following year. The regulation also confirms that a beneficiary "need not be specified by name," provided they are identifiable under the designation, which is what makes a per stirpes instruction workable in the first place. So the two questions stack: per stirpes decides who gets the money, and the retirement distribution rules separately decide how fast they have to take it.

A hypothetical example, run through all three systems on one family. Marguerite leaves $900,000 to her descendants. She had three children: Alice, who survives her; Bruno, who died leaving one child, Dev; and Clara, who died leaving three children, Eli, Fay and Gia.

Strict per stirpes, the California section 246(a) method, divides at the children's generation into three shares of $300,000. Alice takes $300,000. Dev takes Bruno's entire $300,000. Clara's three children split her $300,000 and receive $100,000 each. Dev inherits three times what his cousins do, purely because Bruno had one child and Clara had three.

Per capita at each generation, the section 247 method, divides at the children's generation into the same three shares and gives Alice her $300,000. Then the remaining two shares, $600,000, are combined and divided equally among the four grandchildren who inherit, giving each of them $150,000. Dev now receives half of what he would have under strict per stirpes, and his three cousins each receive half again more.

Where the first two systems diverge. Suppose Alice had also predeceased Marguerite, leaving two children of her own, so no child survives and there are six grandchildren. Strict per stirpes still divides into three shares at the children's level: Alice's two children take $150,000 each, Dev takes $300,000, and Clara's three take $100,000 each. Division at the nearest surviving generation, the section 240 method, instead makes its first cut at the grandchildren's level, producing six equal shares of $150,000. Every figure adds to $900,000; the disagreement is entirely about which generation the first division happens at. Switching between the two halves Dev's inheritance, from $300,000 to $150,000, and raises Clara's children from $100,000 to $150,000 each. Note also what strict per stirpes does on its own: Dev takes three times what each of Clara's children takes, for no reason other than the size of the family he was born into.

Pros

• Keeps money within each branch of the family, which is what most people picture when they name their children.
• Prevents a grandchild from being disinherited because their parent died first, which is the most common accidental outcome without it.
• Requires no update when a beneficiary dies, since the instruction handles the substitution automatically.
• Free to elect. On most beneficiary forms it is a checkbox or a phrase.

Cons

• The words do not mean the same thing in every state, so the same instruction can produce different results depending on governing law.
• "Per capita" means one thing in a probate code and something narrower on a beneficiary form, and the same state can apply different methods to an instrument and to an intestate estate, which makes plain-language descriptions unreliable.
• Strict per stirpes produces unequal shares among cousins, which some families consider unfair and did not intend.
• It can route money to a minor, which creates a guardianship or custodial problem the designation itself does not solve.
• Beneficiary forms define these terms themselves and do not always offer the version you want.