An elderly gentleman I knew was a widower. He and his wife had three children, three sons. Two of the sons were dead by the time our widower passed away, but one of them was alive. (All three of his sons were teenagers when he wrote that Last Will.) Although he was an acquaintance of mine, he did not come in and review his Last Will with me after his wife passed away .
The Last Will appeared to be “simple,” a favorite adjective that prospective clients use when they call me about my helping them with a new Last Will. They are looking for a “simple” Last Will. Under the widower’s “simple” Last Will, he left everything to his wife and, if she did not survive him (as she did not), then to his “descendants, per stirpes.” Descendants, per stirpes? Not so simple after all.
The widower’s two deceased sons left children of their own, grandchildren of my client. One of the deceased sons had three children and the other, two children. All five of these grandchildren were living when the widower passed away. The third son, the surviving son, had never married and had no children, which probably accounts for the fact that he outlived his two brothers.
So who gets what of my client’s estate? Do we count heads and divide by six? Florida’s Probate Code, in part, defines a “descendant” to be “a person in any generational level down the applicable individual’s descending line and includes children, grandchildren, and more remote descendants.” Standing alone, then, we would seem to have six equal shares, one for the surviving son and one for each grandchild. The “per head” sort of distribution would be “per capita.” But in the widower’s Last Will, he leaves the estate to his “descendants, per stirpes” and not per capita. Big difference.
“Stirpes” is the plural of “stirps,” which means “stem” or “root.” So stirpes mean “roots” or “stems.” “Descendants, per stirpes,” means, then, descendants “by the roots” or “per the stem.” How many stems grew from our widower? The answer is three, because he had three children, the three sons.
With a direction to distribute one’s estate to one’s descendants per stem, then, we initially divide our widower’s estate into thirds, one for each child, whether the child is living or dead. In the widower’s case, his surviving son gets one-third, the two grandchildren who are siblings of each other share their deceased father’s share, and the three grandchildren who are siblings of each other share their deceased father’s share. We have, then, a one-third share, two one-sixth shares, and three one-ninth shares. Would that be what my acquaintance, the widower, would have wanted? I doubt it. That is, however, what happened.
If the widower had a dead child who did not have children who survived the widower, then that stem would be, you might say, dead. It no longer counts. If the childless son had also died, then we would have had two stems, the estate would have been divided in half. One set of grandchildren would each receive one-fourth of the estate and the other set one-sixth each. This may be better, but probably not best, probably not what the widower would have wanted. He probably would have preferred equal shares to each grandchild, if the grandchildren only had survived him.
That phrase “descendants, per stirpes,” is very often the default direction when the named beneficiary of a Last Will dies before the person who owns the asset passes away. It is also the default result in other situations when someone dies and there is either no Last Will or the asset is not controlled by the Last Will. I would say that often the application of the default rule of per stirpes leads to an abysmal result. It is a result, however, that can be avoided. You just have to see a lawyer about it and in the governing instrument say something more deliberate and thoughtful and appropriate than “descendants, per stirpes.”