Per stirpes

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Per stirpes is a Latin phrase (meaning per branch) used in wills that specifies that each branch of the testator's family is to receive an equal share of an estate.

[edit] Example

Suppose that the testator is A, whose will specifies that his estate is to be divided among his children per stirpes. A has three children, B, C, and D. B is already dead, but has left two children (grandchildren of A), named B1 and B2. When A's will is executed, under a per stirpes division, C and D each receive one-third of the estate, and B1 and B2 each one sixth, because their "branch" of the family has received one equal share. Under a per capita distribution, each of the surviving descendants B1, B2, C, and D would have received one quarter of the estate.

Similarly, if grandchild B1 had also died before A but left two children, B1a and B1b, a per stirpes division would still give one third to each of C and D and one sixth to B2. The one sixth allocated to the B1 branch would be divided between B1a and B1b, with each receiving one twelfth of the original estate.

At least one state, such as New York, has a statute that modifies this definition, however. Under New York law, the number of branches is determined by reference to the generation nearest the testator which has a surviving descendant. Thus, in the first example, if C and D also are already dead, and each left one child, named (respectively and appropriately) C1 and D1, then each of B1, B2, C1 and D1 would receive one quarter of the estate.

Note that the spouses of the children (that is, B, C, and D spouses) are not considered. Spouses are not a part of the branch. Therefore, even if B, C or D died leaving a spouse as well as children, all (100%) of the assets pass to the children and (0%)nothing passes to the spouses of A's children B, C, and D. From the example above, if A's child B passed away before A's death, A's grandchildren B1 and B2 would each receive half of B's share. Even if B had a living spouse at the time of A's death, she would receive nothing from A's estate.