QOW: On Representation

In 1790, the nation which had fought a revolution against taxation without representation discovered that some of its citizens weren’t much happier about taxation with representation.

— Lyndon B. Johnson


Modern Per Stirpes vs. Classic Per Stirpes

“Per stirpes” is a legal phrase which means (in the estate administration arena) “by representation”. It is used in state law to divide assets for decedents without a will; it is likewise used in wills to divide property by the testator.

A recent Nebraska estate provides an example of a common family situation, and how “per stirpes” could be interpreted, and how “per stirpes” should be interpreted.

In the Estate of Evans, the decent died intestate, without a surviving spouse, children, parents, or siblings. One sibling predeceased leaving two living daughters, another sibling predeceased leaving one living son.

Under Classic (or strict, or English) per stirpes, the decedent’s property is divided into two shares, because the decent has living relatives from two predeceased brothers. Under Modern (or American) per stirpes, the decedent’s property is divided into three shares for the three living nieces and nephews.

The distinction between the two methods of interpreting per stirpes is the generation at which the division is made. Under Classic per stirpes, the division is made at the decedent’s generation; under Modern per stirpes, the division is made a the first generation that has surviving issue.

The Modern per stirpes in the Nebraska case was correct, and really benefits the nephew who gets 1/2 of the estate instead of 1/3.

The case is covered by Wealth Management here.

See Estate of Evans, 20 Neb.App. 602, 827 N.W. 2d 314 (March 12, 2013)