Also known as: stirpes · stirpal · stirp ital · per stirpes
Written by attorneys — see sources below.
A branch of a family or line of descent. When a governing instrument directs per stirpes distribution, the property is divided into equal shares at the first generation of surviving descendants, with each deceased descendant's share passing to that person's own surviving descendants by repeated subdivision at each succeeding generation.
Sasha Stone's will leaves her estate in trust for her children with remainder to her issue per stirpes. One child survives Sasha while another predeceases her leaving two children. The trustee divides the remainder into two equal shares, one going outright to the surviving child and the other divided equally between the two grandchildren of the predeceased child.
Simone Sanders creates an irrevocable trust directing income to her daughter for life with remainder to the daughter's issue per stirpes. The daughter dies survived by one child and by two grandchildren of a predeceased child. The trustee allocates one share to the surviving child and divides the second share equally between the two grandchildren.
Mrs. Isabel Dutrow, the testatrix, died on September 27, 1977. Her last will, dated April 8, 1976, was admitted to probate by the Surrogate of Ocean County on October 12, 1977, with the First National State Bank of New Jersey serving as executor. The plaintiffs, two of Mrs. Dutrow's six grandchildren and the sons of her deceased daughter Betty Haynes, brought suit to set aside the probate of the will and two related trust agreements. The principal beneficiary under the contested instruments was Mrs. Dutrow's surviving daughter, Dorcas Cotsworth. After the death of her daughter Betty in June 1973, Mrs. Dutrow moved from York, Pennsylvania, to live with Dorcas and John Cotsworth in Short Hills and Bay Head, New Jersey. For more than thirty years prior to Betty's death, Betty and her sons had lived with Mrs. Dutrow in the family home. Although Mrs. Dutrow was eighty-four years old at the time of the move and suffered from glaucoma, cataracts, diverticulitis, and a recent hip fracture, she remained alert and intelligent. Earlier estate plans prepared by longtime family attorney Richard Stevens had provided for equal treatment between the Haynes and Cotsworth branches of the family. Beginning in July 1973, Mrs. Dutrow executed multiple new wills and trust agreements that progressively favored Dorcas Cotsworth and her children. Dorcas and John Cotsworth consulted their attorney Grant Buttermore, who had represented the Cotsworth family and their business for several years. Buttermore met privately with Mrs. Dutrow, discussed her assets and plans, and prepared new trust agreements and a will executed on January 16, 1974, which severed the Haynes grandchildren from most of the estate. On April 24, 1975, Mrs. Dutrow amended the revocable trust agreement and added a codicil to her will to include in terrorem clauses in each instrument. The necessary amendments to the revocable trust agreement were prepared by Buttermore and executed by Mrs. Dutrow on January 9, 1976, providing for distribution of the principal to Dorcas upon Mrs. Dutrow's death, or, if Dorcas was not then living, equally among Mrs. Dutrow's grandchildren. The plaintiffs challenged the instruments after probate. In an unreported opinion, the trial court upheld the probate, finding that a presumption of undue influence had been rebutted, but ruled the in terrorem clauses unenforceable. The Appellate Division affirmed the upholding of the will and trusts but reversed on the enforceability of the in terrorem clauses. The Supreme Court granted the plaintiffs' petition for certification.
View caseThe property is divided into as many equal shares as there are surviving children of the designated ancestor plus deceased children who left surviving descendants. Each surviving child's share passes outright while each deceased child's share is subdivided among that child's surviving descendants at the next generation, repeating until fully allocated.
…divided amongst the lineal descendants of my grandchildren.” “Equally,” referring to a multigenerational class, normally means per stirpes. New England Trust Co. v. McAleer , 344 Mass. 107, 112 (1962). Dexter v. Inches , 147 Mass. 324, 326 (1888). In such a case, the stirpes are normally placed at one generation before the…
…said son should predecease him, the Trustee shall pay the net income derived from the trust fund unto the lineal descendants, per stirpes , from time to time living, of the Grantor’s said son until the death of the last surviving child of the Grantor’s said son, who shall be living at the time of the Grantor’s death, and upon…
…If either of my wife's children predceases (sic) her, the predeceased child's share shall be distributed to his or her issue per stirpes. If my said brother, Eli Fabian, predeceases me, then one half of his share shall be distributed to his daughter, Miriam Fabian, or her issue
…shall be conveyed, transferred and paid over in equal shares to and among my issue living at that time, such issue taking per stirpes and not per capita, and thereupon the trusts established by this instrument shall cease and determine.” The same deed of trust was the subject of the decision in Dexter v. Treasurer &…
…set up to let Dorcas have income and right to sprinkle money to Grandchildren when necessary.... When Dorcas dies then the per stirpes
That individual is disregarded and the share is not created or is reallocated among the remaining branches at the same generation.
Yes. The representational direction suggests substitution of descendants for deceased children, leading courts to construe children to mean issue so that a deceased child's line receives the share by representation.
Per stirpes divides initially at the children of the ancestor while per capita at each generation divides at the nearest generation with living descendants and pools remaining shares for further equal division at each lower generation.
It depends on whether the instrument or surrounding circumstances show a different intention. Formal adoption creates a parent-child relationship but facts such as adult adoption, lack of co-residence, and brief employment may indicate the settlor did not intend inclusion of that line.