What Per Stirpes Means in Florida Inheritance Law

What "Per Stirpes" Means

Per stirpes is Latin for "by the roots" or "by the branch." When property passes per stirpes, each branch of the family receives an equal share, and if the person heading a branch — typically one of the decedent's children — has already died, that person's share does not vanish. It drops down to their own descendants. So if your brother died before your mother, his share of her estate passes to his children, not to you and your surviving siblings.

This is not just drafting jargon. It is Florida's statutory rule of descent, and it decides real outcomes: whether a grandchild inherits anything at all when their parent dies first. Understanding it matters whether you are creating a will or trust, or you are a beneficiary in a probate trying to figure out what you are entitled to.

The Statute: F.S. 732.104

Under F.S. 732.104, descent in Florida "shall be per stirpes, whether to descendants or to collateral heirs." Two points in that short sentence do a lot of work:

• It is the default rule. When a Florida resident dies without a will, or when a will or trust says "to my descendants" without specifying a method, per stirpes governs the distribution.
• It applies to collateral heirs too. Per stirpes is not limited to children and grandchildren. If an estate passes to siblings, nieces, and nephews, the same branch-by-branch division applies — a deceased sibling's share passes down to that sibling's descendants.

How a Per Stirpes Distribution Is Worked Out

The division follows a consistent process:

• Start with the nearest generation. Begin with the generation closest to the decedent — usually the decedent's children.
• Create the shares. One share for each living member of that generation, and one share for each deceased member who left descendants who survived the decedent.
• Distribute to the living. Each living member of that generation takes their share outright.
• Pass deceased members' shares down. Each deceased member's share drops to their own descendants, dividing again by branch if any of those descendants have also died leaving children of their own.

Example — one child predeceases. Maria's will leaves her estate to her children per stirpes. She had three children: Ana, Carlos, and David. Carlos died before Maria, leaving two children, Elena and Felipe. The estate is divided into three shares. Ana takes one-third, David takes one-third, and Carlos's one-third is split between Elena and Felipe, who each receive one-sixth.

Example — two children predecease. Robert had four children: Alice, Brian, Carol, and Dennis. Brian predeceased Robert leaving one child, George. Carol predeceased Robert leaving three children: Hannah, Ian, and Julia. The estate is divided into four shares. Alice and Dennis each take one-quarter, George takes Brian's entire one-quarter, and Hannah, Ian, and Julia each take one-twelfth of the estate — Carol's quarter split three ways.

Example — the entire generation predeceases. If all of the decedent's children died first, the division starts at the nearest generation with a living member — the grandchildren — but the estate is still divided by branch, so each deceased child's line receives an equal share to divide among that child's descendants.

Per Stirpes vs. Per Capita

Per stirpes is often contrasted with per capita distribution. Per capita distributes by individual: only the living members of the named class share, and they share equally regardless of family branch.

The difference is stark when a child dies first. Suppose a decedent had three children and one predeceased leaving two children of their own. Under a per capita distribution to "my children," the two surviving children each take one-half, and the deceased child's children take nothing. Under per stirpes, the estate divides into three shares — each surviving child takes one-third, and the deceased child's two children split the remaining third.

Some instruments use a third approach, per capita at each generation, which pools the shares of all deceased members at each generational level and redistributes them equally at the next level. It can produce different results than strict per stirpes when multiple members of the same generation predecease. Whatever method you want, the document must say so clearly — otherwise Florida's per stirpes default under F.S. 732.104 controls.

When There Is No Will: How Per Stirpes Fits Into Florida Intestacy

Per stirpes answers how shares are divided within a class of heirs. Two other statutes answer who the heirs are in the first place when there is no will.

Under F.S. 732.102, the surviving spouse takes the entire intestate estate if the decedent left no descendants. Where the decedent left descendants who are not also descendants of the surviving spouse — for example, children from a prior relationship — the spouse's share is one-half of the intestate estate.

Under F.S. 732.103, the part of the intestate estate not passing to the surviving spouse descends in a fixed order: to the decedent's descendants; if none, to the decedent's parents; if none, to the decedent's siblings and their descendants; and then to grandparents and their descendants, in the order the statute sets out. At each of those levels, F.S. 732.104 applies — the division is per stirpes. That is how a niece or nephew ends up inheriting the share their deceased parent would have taken from a sibling's estate.

Why This Matters for Your Estate Plan

Per stirpes keeps each family branch's inheritance intact. If one of your children dies before you, their share passes to your grandchildren in that line rather than being redistributed among your surviving children. For many families, that is exactly the intended result — but not for all. Some people prefer that all grandchildren share equally regardless of branch, or want a specific alternate disposition if a beneficiary predeceases them.

Because F.S. 732.104 supplies the default whenever an instrument is silent or ambiguous, precise language in your will or trust is the only way to get a different outcome. A single missing phrase can shift a substantial share of an estate from one branch of the family to another.

Talk to a Florida Estate Planning and Probate Attorney

If you have questions about how per stirpes affects your inheritance, need a will or trust drafted with the right distribution language, or are involved in a probate or trust administration where the method of distribution is disputed, the Law Offices of Albert Goodwin, PA can help. We assist clients throughout Florida from our office at 121 Alhambra Plz #1000, Coral Gables, FL 33134. Email [email protected] or call to schedule a consultation.