Understanding Per Stirpes: Does It Apply to Spouses in Estate Planning?

April 19, 2024

Understanding Per Stirpes and its Impact on Spousal Beneficiaries

When it comes to estate planning and probate, the concept of per stirpes is often used to determine how assets are distributed among beneficiaries. However, there is often confusion as to whether a per stirpes distribution extends to a surviving spouse. In this article, we will delve into the intricacies of per stirpes and explore its implications for spouses as beneficiaries.

What is Per Stirpes?

Per stirpes is a Latin term that translates to “by the roots” or “by the branches.” In the context of inheritance, it refers to a method of distributing assets among the descendants of a deceased person. In a per stirpes distribution, if a primary beneficiary predeceases the testator (the person who made the will), his or her share is divided equally among his or her own descendants, known as the “branch” or “line” of the deceased beneficiary.

For example, let’s consider a scenario where John, the grantor, has two children, Sarah and Michael. If Sarah dies before John, leaving two children, under a per stirpes distribution, Sarah’s share of the estate would be divided equally between her two children, while Michael would receive his own share.

Application of Per Stirpes to Spouse Beneficiaries

While per stirpes distribution is commonly used to distribute assets among descendants, its application to surviving spouses varies depending on the jurisdiction and the specific terms of the estate planning documents. In many jurisdictions, the surviving spouse is generally considered the primary beneficiary and is entitled to receive a certain portion of the estate, regardless of whether a per stirpes distribution is involved.

However, if the testator specifically includes per stirpes language in his or her will or estate planning documents, it may affect the distribution of assets to the surviving spouse. In such cases, the assets may be divided per stirpes between the surviving spouse and the descendants of the deceased spouse.

Community Property States and Per Stirpes Distribution

It is important to note that the application of per stirpes distribution may be affected by the community property laws of certain states. Community property states, such as California, Arizona, Texas and others, have specific rules regarding the division of property between spouses.
In community property states, assets acquired during the marriage are generally considered community property and are subject to equal division between the spouses upon divorce or death. Therefore, even if there is per stirpes language in the estate planning documents, the surviving spouse may be entitled to a significant portion of the assets regardless of the per stirpes distribution.

Seek professional advice

Given the complexities and potential variations in the application of per stirpes to spousal beneficiaries, it is critical to seek professional advice when drafting your estate plan or interpreting the implications of an existing plan. Consulting with an experienced estate planning attorney or financial advisor who specializes in estate matters can help ensure that your intentions are clearly expressed and that your assets are distributed according to your wishes.

In addition, estate planning laws and regulations are subject to change and may vary from jurisdiction to jurisdiction. Therefore, it is important to stay current and review your estate plan periodically to ensure its continued relevance and compliance with applicable laws.


Per stirpes distribution provides a framework for dividing assets among descendants in estate planning. While its application to spousal beneficiaries can vary, the surviving spouse is often treated as the primary beneficiary entitled to a specific portion of the estate. However, the inclusion of per stirpes language in estate planning documents can alter this distribution, and the laws of community property states may also affect the division of assets. Seeking professional advice is critical to navigating these complexities and ensuring that your estate plan reflects your wishes and complies with applicable legal requirements.

Remember that estate planning is a highly personalized process, and the information provided here is intended as a general guide. Consult with a qualified professional to tailor your estate plan to your specific circumstances and goals.


Does per Stirpes go to spouse?

No, per stirpes does not typically go to the spouse. Per stirpes is a legal term that refers to distributing an estate or inheritance to the descendants of a deceased beneficiary. It is often used when the primary beneficiary has passed away before the testator (the person who created the will) or when the primary beneficiary disclaims their inheritance.

What does per stirpes mean?

Per stirpes is a Latin term that means “by roots” or “by branch.” In the context of inheritance, it is a method of distributing assets to the descendants of a deceased beneficiary. Each branch of the family receives an equal share of the inheritance, regardless of the number of individuals in that branch.

Who receives the inheritance under per stirpes?

Under per stirpes distribution, the inheritance is typically divided among the deceased beneficiary’s children or, if they are not alive, among their descendants. If all the children are deceased, the assets are divided equally among the grandchildren. This process continues down the family tree, with each branch receiving an equal share.

What is the difference between per stirpes and per capita?

Per stirpes and per capita are two different methods of distributing assets in an inheritance. Per stirpes distributes the assets among the descendants of a deceased beneficiary, while per capita distributes the assets equally among all living beneficiaries, regardless of their relation to the deceased. Per capita does not consider the branches of the family tree, unlike per stirpes.

Can a testator choose between per stirpes and per capita?

Yes, a testator can choose between per stirpes and per capita distribution when creating a will. This choice is typically specified in the will document. It is essential for individuals to clearly state their preferred method of distribution to ensure their assets are distributed according to their wishes.