Per stirpes
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Per stirpes is a law Latin phrase (meaning by branch) used in wills that specifies that each family branch of a group of beneficiaries is to receive an equal share of an estate, usually to take effect in the case where the first choice beneficiary has died and their share is to be redistributed to their descendants.
"stirpes" is pronounced with two syllables as if the words 'stir' and 'peas' were joined together.
[edit] Example
Suppose that the testator is A, whose will specifies that his or her estate is to be divided among his descendants living at his death in equal shares 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.
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.
We would reach the same result under the alternate scheme of per capita at each generation. Under this scheme, the estate is divided into equal shares at the generation closest to the deceased with surviving members(here D and C survive so we divide at their generation). Each surviving member (D & C) receive one full share. Any remaining shares (here B's share)are combined and then divided in the same manner among the surviving descendants of the deceased descendants. We get the same result because B's 1/3 is combined with itself and distributed to B1 and B2 (1/6 to each).
The per capita scheme would differ if C pre-deceased with one child, C1. Under per stirpes, C1 would receive all of C's 1/3 while B1 and B2 each received 1/6 (half each of B's 1/3 share). Under per capita, C1's share is combined with B1 and B2's share (2/3's total) and divided equally among the three.
To give the effect indicated in the previous two examples the clause should also include a provision that no beneficiary being a grandchild or remoter descendant will take a share if his or her parent is alive and takes a share.
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. This method is actually applied by the states of Alaska, Arizona, Colorado, Hawaii, Maine, Michigan, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Utah, and West Virginia.
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 died 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, he/she would receive nothing from A's estate.
