Also stated as by root, branch, class or stock.
An entitlement to participate in the distribution of property, such as an estate, that flows down to a named beneficiary's next heir if he or she is otherwise unable to take his or her share (i.e., dead before the testator).
Usually, as one might imagine a standard situation, a testator would want a share to a son or daughter, to continue to flow to the son or daughter's heirs if that son or daughter pre-deceased the father. That's a per stirpes distribution. But in many legal systems, including the common law, testators benefit from testamentary freedom and do not want that distribution for whatever reason. Then, they often defer to a per capita distribution which requires a beneficiary to survive the testator otherwise their share is sent back up, not down, for re-distribution among the survivors of whatever class or generation the pre-deceased came from (in this example, children of the testator).
Often contrasted and distinguished with the distribution stated to be per capita in which a beneficiary must be alive to be entitled to his or her share; failing which that share accrues to the surviving members of the stated group (aka class). In a per capita distribution, if an individual named to benefit in a will is pre-deceased, his or her share is shot back up the chain and re-distributed among the living beneficiaries of whatever class or group she or he was part of, and does not flow laterally or down to the deceased's next-of-kin, as might be expected to be the normal course of events.
In St. Louis Union Trust Company v. Greenough, Justice Coil of the Supreme Court of Missouri used these words:
"Per stirpes means through or by roots or stocks, by representation. Therefore, the expression per stirpes and not per capita describes or designates a mode or method by which gifts to substituted legatees are to be distributed. Under a per stirpes distribution, the substituted legatees collectively take the share which their respective deceased ancestor would have taken if he had been living."
Carmen Theriault wrote, in her 2008 article:
"The phrase per stirpes and per capita signify how an estate is to be distributed among a class of beneficiaries. Per capita indicates that the estate is to be distributed by head - meaning that one share is to be paid to each beneficiary in the class specified who is alive at the date of distribution.
"Under a per stirpes distribution, the share of a beneficiary who dies before the date of distribution goes to increase the shares payable to the other beneficiaries who are alive at the date of distribution. It does not pass to the descendants of the (pre)deceased beneficiary....
"The phrase per stirpes signifies that the estate is to be distributed by roots or stocks meaning that one share is to be paid to a representative of each family line of descendants. In simplified terms, under a stirpital division, a class of beneficiaries will take the share that their (pre)deceased ancestor would have been entitled to receive if she or he had been living. They will do so by right of representation."
Williams borrows from Book 2 of William Blackstone and offers this definition of per stirpes:
"The lineal descendants, in infinitum, of any person deceased, shall represent their ancestor, that is, shall stand in the same place as the person himself would have done, had he been living."
Used in wills to provide a distribution that does not go to a particular person but to a person who stands as a representative of a branch of the family so that if a gift is interrupted by the pre-death of a beneficiary, that share flows down through the family branch, to descendants of the beneficiary.
Osborn descibes a per stirpes distribution as follows:
"... if (the estate) is divided equally amongst the surviving children ... and the descendants of the deceased children colllectively so that the descendants of a deceased child take that child's share between them."
A more contemporary description (2008, Low & Jenkins):
"Per stirpes (by the root) is used to reflect a scheme of distribution that recognizes each line of lineal descendants of a named beneficiary as a root.
"If the (per stirpes) beneficiary predeceases the testator, his or her share of the estate passes on to his or her lineal descendants (i.e. issue)."
Per stirpes, like per capita, are terms borrowed from Roman law and its successor, the civil law, and are found and described in Justinian's Institutes although the mechanism of a per stirpes distribution was known to the common law (see below).
A per stirpes distribution is usually contrasted with a per capita distribution.
A per stirpes distribution allows the share going to the pre-deceased beneficiary to continue to flow down through the family branch, class or group the beneficiary represented - down to the nexts-of-kin. The nexts-of-kin claim a share in the estate in the right of the pre-deceased who would of been entitled to take had he or she survived the testator.
In writing a will, a testator has to decide whether he or she wishes to divide the estate between only those children alive at the testator’s death, or if he or she wishes to benefit the branch - including the children of any pre-deceased child (grandchildren).
A per stirpes distribution is the common choice and ensures that the grand-children of the testator share equally in the share that his or her deceased parent would have received if they had of survived the testator.
But in most cases, in the absence of wording as to what to do to a gift to a named beneficiary who dies before the testator, the court will assume a per capita distribution even though (Williams):
"... the common law knows no other rule of succession but that per stirpes only."
The use of the word is somewhat controversial. For one thing, the case law has not been consistent in treatment of per stirpes cases that have come before it. For another, a court is always seeking first and foremost to give life to the intentions of the testator however awkwardly those intentions may be written. Worse, words right after or preceding the words per stirpes can divest the distribution of its intended effect and result in a per capita distribution even though the words per stirpes were used in the will.
One 2013 manual for lawyers1 proposes this description of per stirpes, designed to be inserted right into the will for ease of reference:
"In this Will, a disposition to a person’s issue alive at a particular time per stirpes means my Trustee must divide the estate or the relevant part of it into a sufficient number of equal shares to make:
(a) one share for each child of that person living at that particular time; and
(b) one share for each child of that person who died before that particular time but left issue alive at that particular time;
... and the same principle will be applied in any required further division of a share at a more remote generation because:
(i) each child (including a child who has died before that particular time and left issue alive at that particular time) of that person will constitute a “stirp” or root for purposes of the division;
(ii) children will take in substitution for their parent, if their parent would have taken if alive at that particular time but died before that particular time; and
(iii) children will not take if their parent is entitled to take and is alive at that particular time."
- Duhaime, Lloyd, Legal Definition of Per Capita
- Duhaime, Lloyd, Legal Definition of Stirpes
- Low, H., and Jenkins, K., Practice Materials: Estates (Vancouver: Law Society of British Colukbia, 2008), page 33.
- NOTE 1: Peter W. Bogardus, Peter, Wetzel, S. and Hamilton. M., Wills Precedents: An Annotated Guide, Continuing Legal Education Society of British Columbia
- St. Louis Union Trust Company v. Greenough, 282 SW 2d 474 (1955)
- Theriault, Carmen, Hamel Estate v Hamel: Should Will Drafters Abandon the Use of Issue Per Stirpes?, 18 ETR 127 (1998)