In order to understand the phrase, "descendants, per stirpes," it is first necessary to understand who a “descendant” is.
A descendant is a person who is related, by blood or legal adoption, to someone (an ancestor) from an earlier generation. So, a person’s descendants include his or her children, grandchildren, great grandchildren, great great grandchildren, great great great (whew!) grandchildren, and so on, as far down the generational line as is possible. However, descendants do not include any person who is or was married to a descendant.
The phrase descendants, per stirpes, is commonly used to describe how a deceased person’s assets are to be distributed among his or her descendants. Its application depends upon which descendants survive, and how closely related each is to the deceased person.
For example, a Living Trust might contain the following provision:
“Upon my death, and after paying all proper debts, taxes and expenses, the Trustee shall distribute all of the remaining Trust assets to my surviving descendants, per stirpes.”
Unfortunately, however, after reading the above language, a Client often asks: “OK, just exactly who am I leaving my money to?”
The phrase is a favorite among estate planning attorneys, because it is short, concise, well defined under the law, and, after a somewhat lengthy discussion, understandable by Clients. Use of the phrase also saves the estate planning attorney from having to draft, as a replacement, 3 to 4 additional pages of legalese which would likely be even more baffling to Clients. Accordingly, use of the phrase, followed by a discussion with the Clients, seems to be the option most preferred by estate planning attorneys.
The “per stirpes” portion of the phrase literally means “by the stirrups,” or “by right of representation," and, in our opinion, should never be used to modify “children,” “grandchildren,” or “great grandchildren” etc. Rather, “per stirpes” should only ever be used to modify “descendants,” as that term includes, potentially, persons in more than one generation.
This phrase is utilized when a Client wishes each branch of his or her family (but with each branch consisting only of the Client’s descendants) to inherit an equal portion of the assets. And, if the descendant in a particular branch who is most closely related to the client is not living, then that deceased person’s then living descendants, per stirpes, will share the portion that the deceased person would have received if he or she were living. Sounds simple, right?
Since a picture is worth a whole lot of words, please click here to see, in a visual and colorful format, how a distribution to descendants, per stirpes, would be made in four different Scenarios.
© 2020 Joseph C. Johnson, P.C.