"Per Stirpes," Revisited

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You should NEVER use "per stirpes" to modify a gift to one generation or one person ("to my children, per stirpes" and "to my niece, per stirpes" are both examples of common, but bad drafting). The modifier "per stirpes" does not describe what to do if a beneficiary is deceased, rather, it is used to describe how a gift to descendants is divided among those descendants. It is not a substitute for a contingent distribution provision. As a challenge to yourself, look at any definition of per stipes and try to logically apply it to a gift to "my children" or "my niece." You'll find it can't be done.

Use of "per stirpes" must ALWAYS modify a gift to an ancestor's descendants ("to my descendants, per stirpes" and "to my sister's descendants, per stirpes" are both examples of good drafting).

The gift is to "my descendants" and "per stirpes" merely describes the share each descendant gets (with some descendants getting nothing). Note that "per stirpes" cannot be used with just any class of beneficiaries -- it can only be used with the class made up of an ancestor's descendants, and not a sub-class of those descendants.

Curiously, since the very definition of "per stirpes" contemplates that some descendants might be deceased (thereby restricting the distribution to living descendants), use of "to my then living descendants, per stirpes" creates something of a quandary. Is the drafter intending that the modifier "per stirpes" apply to "descendants" or the sub-class of "then living descendants?" If "then living descendants," then how do you apply the modifier of "per stirpes," which contemplates some of those "then living descendants" might be deceased? And if the drafter intended "per stirpes" to apply to "descendants," then use of "then living" is, at best, redundant. I don't think it's a fatal defect, but there is no reason to create the issue in the first place. Just leave "then living" out of the equation -- "per stirpes" takes care of that part.

So, what if you want a gift to go to a niece, and if she's not living, then to her descendants? How do you draft that? Well, just that way. "To my niece, but if she's not then living, to her descendants, per stirpes."

Oh, and by the way, be careful about using the word "sibling." First, I'm not sure it has a legal definition. Second, it's probably not defined in the document. In WealthDocs, we define children, but just because I am one of those defined children does not mean the others are my "siblings." For example, what if a stepson was included as a child in the document? Even if you could find a legal definition of sibling, I doubt it would include my stepbrother.

In this area of estate planning, keep it simple and stick to standard language. Don't get too cute with this stuff.

I hope this helps you plan and draft better for your clients.

Brian F. Albee, JD
http://www.wealthcounsel.com/