What Does Per Stirpes Mean in Florida?

Per stirpes is a Latin term meaning "by the roots" or "by the branch," and it is one of the most important concepts in Florida estate planning and inheritance law. When assets are distributed per stirpes, each branch of the family receives an equal share, and if a beneficiary in that branch has predeceased the decedent, that beneficiary's share passes down to their own descendants. Understanding how per stirpes works is essential for anyone creating a will or trust in Florida, and for beneficiaries trying to determine what they are entitled to inherit.

At the Law Offices of Albert Goodwin, PA, we help clients throughout Florida with probate, trust administration, and estate planning matters involving per stirpes and other methods of distribution. If you have questions about how an estate or trust will be distributed, our attorneys can provide clear guidance.

Definition of Per Stirpes

Per stirpes is a method of distributing an estate or trust in which each branch of the family tree receives an equal share. If a beneficiary who represents a branch of the family has already died, that beneficiary's share does not disappear—instead, it passes down to their descendants in equal portions. The distribution follows the family line downward, ensuring that the deceased beneficiary's children (and potentially grandchildren) inherit what their parent would have received.

For example, if a decedent leaves their estate "to my children, per stirpes," and one of three children has predeceased the decedent but left two children of their own, the estate would be divided into three equal shares: one share to each surviving child, and the predeceased child's one-third share split equally between their two children (each receiving one-sixth of the total estate).

How Per Stirpes Distribution Works in Florida

In Florida, per stirpes distribution is governed by F.S. § 732.104, which provides the rules for how property descends when a beneficiary has predeceased the decedent. Under this statute, when property is to be divided per stirpes, the estate is divided into as many equal shares as there are surviving members of the nearest generation of beneficiaries that contains at least one living member, plus one additional share for each deceased member of that generation who left descendants who survived the decedent.

The process works as follows:

1. Identify the first generation. Start with the generation of beneficiaries closest to the decedent (typically the decedent's children).
2. Divide into shares. Create one share for each living member of that generation and one share for each deceased member of that generation who has living descendants.
3. Distribute to living members. Each living member of the first generation receives their share outright.
4. Pass deceased members' shares down. For each deceased member of the first generation who left living descendants, their share passes down to their own children using the same per stirpes method. If any of those children have also predeceased and left descendants, the process continues down the family tree.

Per Stirpes Examples

Examples help illustrate how per stirpes distribution operates in practice under Florida law.

Example 1: One Child Predeceases

Maria dies and her will leaves her estate "to my children, per stirpes." Maria had three children: Ana, Carlos, and David. Carlos predeceased Maria but left two children, Elena and Felipe. Under per stirpes distribution, the estate is divided into three equal shares (one for each of Maria's children). Ana receives one-third, David receives one-third, and Carlos's one-third is split equally between Elena and Felipe, who each receive one-sixth.

Example 2: Two Children Predecease

Robert dies leaving his estate per stirpes to his children. He had four children: Alice, Brian, Carol, and Dennis. Brian predeceased Robert and left one child, George. Carol also predeceased Robert and left three children: Hannah, Ian, and Julia. The estate is divided into four shares. Alice receives one-quarter, Dennis receives one-quarter, George receives Brian's entire one-quarter share, and Hannah, Ian, and Julia each receive one-twelfth (splitting Carol's one-quarter share three ways).

Example 3: An Entire Generation Predeceases

If all of the decedent's children predecease the decedent, the per stirpes analysis moves down to the next generation—the grandchildren. Each branch of the family (represented by each deceased child) receives an equal share, and that share is divided among the deceased child's surviving descendants.

Per Stirpes vs. Per Capita

Per stirpes is often contrasted with per capita distribution. While per stirpes distributes by branch of the family tree, per capita distributes by individual, giving each living beneficiary at a particular generational level an equal share regardless of which family branch they belong to.

Under a per capita distribution, only the living members of a generation share equally. If a decedent had three children and one predeceased leaving two grandchildren, a per capita distribution to "my children" would give each of the two surviving children one-half of the estate—the predeceased child's grandchildren would receive nothing because the distribution is made only to living members of the named class.

Under a per stirpes distribution, the same scenario would produce three shares: each surviving child receives one-third, and the predeceased child's two grandchildren split the remaining one-third.

Florida also recognizes a variation called per capita at each generation (sometimes called "per capita with representation"), which divides property equally at each generational level among the living members and the deceased members who left descendants, then pools and redistributes the shares of all deceased members at the next level. This approach can produce different results than strict per stirpes when multiple members of the same generation predecease the decedent.

Florida's Default Rule Under F.S. § 732.104

When a Florida resident dies without a will (intestate), the state's intestacy statutes determine how property is distributed. Under F.S. § 732.104, Florida's default method of distribution for intestate estates is per stirpes. This means that if a decedent dies without a will, their property will pass to their heirs using the per stirpes method described above, starting with the nearest generation that includes at least one living descendant.

This default rule also applies when a will or trust uses language such as "to my descendants" without specifying a method of distribution. Florida courts will apply per stirpes distribution unless the instrument clearly indicates a different method. Because of this, it is important to use precise language in your will or trust if you want a distribution method other than per stirpes.

Why Per Stirpes Matters in Estate Planning

Choosing the right method of distribution is a critical decision in estate planning. Per stirpes ensures that if one of your children dies before you, their share of your estate will pass to their children—your grandchildren—rather than being redistributed among your surviving children. This keeps each family branch's inheritance intact and provides for the descendants of a child who predeceases you.

However, per stirpes is not always the right choice for every family. Some individuals may prefer per capita distribution so that all members of a generation share equally, or they may want to include specific provisions for what happens if a beneficiary predeceases them. Working with an experienced estate planning attorney ensures that your documents use the correct language to carry out your intentions.

Contact a Florida Estate Planning Attorney

If you have questions about per stirpes distribution, need help drafting a will or trust that reflects your wishes, or are involved in a probate matter where the method of distribution is at issue, the Law Offices of Albert Goodwin, PA can help. We assist clients throughout Florida with estate planning, probate, and trust administration from our office at 121 Alhambra Plz #1000, Coral Gables, FL 33134. Call us at 786-522-1411 or email [email protected] to schedule a consultation.