When it comes to estate planning, few terms cause more confusion and more unintended consequences than “per stirpes.” While it might sound like legal jargon, understanding how it works can make or break your estate plan. In Florida, this concept plays a central role in distributing inheritances among descendants. However, it must be used carefully and correctly.
Let us break down what per stirpes means, how it is commonly misunderstood, and how to avoid the costly mistakes that often land Florida families in court.
The Positive: It is Quite Simple, If You Use It Correctly
Per stirpes is a Latin phrase that translates to “by branch.” It is a method of distributing an inheritance down the family tree, i.e., first to children, and if a child is deceased, to that child’s own children (the grandchildren).
Key Rule: Use “per stirpes” only when referring to a person’s descendants and not siblings, nieces, nephews, or children as a separate class.
Examples that work:
- “To my descendants, per stirpes.”
- “To John Smith’s descendants, per stirpes.”
- “To my father’s descendants, per stirpes.”
In each of these examples, the term tells us how to divide the inheritance among the descendants of one specific individual. The distribution starts with that person’s children. If one of them has passed away, their share passes down to their children.
This language is standard in Florida Last Wills and Trusts, and, when used properly, it is a reliable and predictable way to keep assets in the family.
The Negative: It is Easy to Get Wrong
Unfortunately, per stirpes is frequently misused in estate documents. That is because people often think of it as a shortcut or catch-all for naming backup beneficiaries. It is not.
Incorrect Example: “To my brothers and sisters, per stirpes.”
This seems simple, but it is legally incorrect. The term per stirpes applies only to a person’s descendants. Your siblings are not your descendants. The correct phrase (if you want your siblings’ children to inherit their share if a sibling dies) might be: “To my mother’s descendants, per stirpes.”
Yes, that sounds a bit more awkward, however, it is legally correct and avoids confusion or disputes. Keep in mind:
- “Children” are only part of your descendants and not the same as “descendants.”
- You cannot use per stirpes to divide property among siblings, friends, or any other class of beneficiary.
- Adding words like “then-living” can introduce ambiguity and should usually be avoided.
The Dreadful: Misuse Can Lead to Family Fights
The worst misuse of per stirpes happens when people try to combine it with other correct sounding but legally inconsistent terms.
Example: “To my children in equal shares, per stirpes.”
This may seem like you are saying: “I want my kids to inherit equally, and if one of them dies, their kids will take their place.” But legally, it may be a mess. You are mixing a class gift (children) with a distribution method (per stirpes) that does not apply to that class. This could trigger costly litigation among your children and grandchildren.
Even worse is writing:
“To my son, James, per stirpes.”
That statement is legally meaningless and confusing. You are making a gift to one person but then trying to divide it among his descendants using per stirpes, which is only used with a class of descendants, not a single named person.
Bottom Line: Keep It Clean and Legally Sound
Here is the golden rule:
Always use “per stirpes” only with the word “descendants,” and always tie it to one person.
If your goal is to make sure your assets pass to your children, and if they are no longer living, to your grandchildren and great-grandchildren, then use:
“To my descendants, per stirpes.” Or, To my beloved child. If my child predeceases me, then per stirpes to his/her lineal descendants. If my child predeceases me leaving no issue, then per stirpes to my lineal descendants.
Do not try to be clever or concise at the cost of clarity. In estate planning, clarity equals protection for your wishes and your loved ones.
The foregoing is a brief and general overview of the topic and the need for specific and experienced legal and tax advice is emphasized.
Questions About Florida Estate Planning?
At CASERTA & SPIRITI in Miami Lakes, we can focus on crafting legally sound, personalized estate plans that reflect your values and protect your family.
Whether you are naming beneficiaries, drafting a Last Will, or creating a Trust, we can help you avoid costly mistakes and ensure your estate plan truly reflects your intentions.
Contact us today to schedule a consultation. Serving Miami-Dade County and clients throughout South Florida.
