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Per Stirpes Means Per Stirpes, Correct?

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Jonathan Kinney
BKK Wills, Trusts & Estates Newsletter
August 2013

So, does per stirpes mean per stirpes? In most cases the answer is yes, however, this is not the case in circumstances in which heirs in the closest degree of kinship are deceased.

This issue arises in jurisdictions that have adopted the Uniform Probate Act (“UPC”).  The UPC utilizes the modern per stirpes approach and provides that an intestate estate is divided into as many shares as there are surviving heirs in the nearest degree of kinship.

The more traditional per stirpes definition begins the division at the generation closest to the deceased regardless of whether or not there are surviving individuals in that generation. The modern per stirpes ignores the generation without surviving individuals in that generation and begins at the first generation that has living issue.  The distinction between strict per stirpes and modern per stirpes reach different results in instances where all the heirs of the closest degree of kinship are deceased.

For instance, in the case of the four Hall sisters – Emma, Grace, Isadora and Samantha. Emma and Grace both passed away last month unmarried and without descendants.  Both Emma and Grace died without a will (intestate).  Isadora had one daughter, Lucky. Samantha maintained her family name and had three sons – Joe, Red and Bob (whom they called Boot).  At the time of Emma and Grace’s death, their parents were deceased; Isadora and Samantha had passed away a few years before.  Lucky, Joe, Red and Boot are living.

Emma lived in a state that adopted the UPC while Grace lived in the state that follows the traditional per stirpes rule. It would appear that there will be a different result in how the assets of Emma and Grace are distributed. Emma’s assets would be distributed evenly between Lucky, Joe, Red and Boot while Grace’s assets would be distributed one-half to Lucky and one-sixth each to Joe, Red, and Boot, leaving each of the Hill boys in an unlucky position.