Meet Our Team

 

David Fall Attorney Tampa
David Fall
Associate

dfall@olalaw.com

AREA OF PRACTICE /
Corporate & Tax
Estate & Probate

EDUCATION /
Western New England School of Law, LL.M.
in Elder Law and
Estate Planning, 2016
Univ. of Alabama, LL.M. in Taxation, 2012
Washburn Univ. School of Law, J.D., 2011
California State University, Chico, B.A. in Psychology, 2006

ARTICLES
• Formal vs Summary Administration

• Liquidating An S Corporation

• Surviving Spouses Benefits

• Revocable Trusts and their Benefits

• Do You Prefer "Per Stirpes" or "Per Capita"?

• Special Needs Trusts Preserve Income For The Disabled


  Article:

Per Your Request, Do You Prefer "Per Stirpes" or "Per Capita"?

It's t's not uncommon for a deceased person to be a beneficiary of a will. Perhaps the will wasn't amended in time to exclude the now deceased beneficiary or the beneficiary and decedent passed away simultaneously. A well-drafted will anticipates this scenario and may state that a particular devise will pass to the beneficiary "per stirpes" or "per capita." It's important to know the difference between "per stirpes" and "per capita" in order to fulfill your estate planning intentions.

In Florida, per stirpes is the traditional approach, and is the default by law. Under either a per stirpes, per capita, or per capital with representation approach, the devise passing to the now deceased beneficiary is divided up among that beneficiary's descendants on a generational level.

To illustrate the differences, it's best to use an example: Beneficiary predeceased Decedent leaving three children, Amanda, Bert, and Charlie. If the devise was distributed per stirpes, Amanda, Bert, and Charlie would each receive one-third of Beneficiary's devise. However, if one child (Amanda) predeceased Beneficiary leaving two children (Amy and Alvin), Decedent's grandchildren, then Amy and Alvin would equally share Amanda's one-third share of the devise: Amy and Alvin would each receive one-sixth of the devise. This is the per stirpes approach.

If we took a per capita approach, only the descendants alive in the first generation closest to Beneficiary would share in the devise. In our example, only Bert and Charlie would split the devise with each receiving one-half of the devise. Amy and Alvin would be completely cut out. If we took a per capita with representation approach, we'd have the same result as the per stirpes approach: Bert and Charlie would each receive one-third of the devise and Amy and Alvin would each receive one-sixth of the devise.

It gets more complicated if Amanda, Bert, and Charlie predeceased Beneficiary and each had living children. For example, Amanda had two children, Amy and Alvin; Bert had one child, Brad; and Charlies had three children, Cynthia, Cuthbert, and Carla. In this instance, applying a per stirpes approach, the devise is split equally at the children level despite there being no living children. Therefore, Amy and Alvin would split one-third of the devise; Brad would receive one-third of the devise; and Cynthia, Cuthbert, and Carla would split one-third of the devise.

Applying a per capita approach, all six grandchildren would receive an equal share of the devise since there are no living children. The result would be the same under a per capita with representation approach. 

Although, applying a per capita with representation approach if any of Decedent's children survived Beneficiary would result in that surviving child receiving one-third of the devise and the remaining two-thirds of the devise shared equally among the grandchildren. For example, if Amanda had survived, then Amanda would receive one-third of the devise and Brad, Cynthia, Cuthbert, and Carla would split the remaining two-third of the devise with each receiving one-sixth of the devise.

A key distinction between a per capita approach and a per stirpes approach is how the devise is shared if the Beneficiary passes away leaving surviving children or grandchildren. With a per capita approach, no descendants of the Beneficiary would inherit anything unless they are named somewhere else. Under a per stirpes approach, which is latin for "by the root", the Beneficiary's descendants, including children and potentially grandchildren, would split the share that would otherwise have gone to the Beneficiary.

The differences between per stirpes and per capita can be very complex. To ensure your estate plan does what it's supposed to, have an experienced trusts and estates attorney draft your estate planning documents.







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