Modified per stirpes (also referred to as modern per stirpes) is a system of determining the descendants that will take from individuals who have died intestate or have elected to use the distribution method in a will. Under modified per stirpes, the part of the estate not going to a spouse is divided into primary shares at the generation nearest to the decedent that contains at least one living member. Thus, if all of the decedent’s children are dead, but at least one grandchild is alive, the primary shares are determined at the grandchildren generation rather than the children generation. If a person from the ‘primary share’ generation has predeceased the decedent, that one primary share is further divided by the number of people at the next generation. This is in contrast to the traditional per stirpes system which analyzes a class based upon the ‘branches’ or ‘roots’ with living descendants from the child level. This means that any children of the decedent who are alive or have living descendants will be used to calculate the shares.
For example:
- A has two children, named C and D
- C has two children named L and K
- D has one child named S
If C and D die before A does, and A dies intestate in a modified per stirpes jurisdiction, L, K, and S would each receive ⅓ of the estate because the division occurs on the grandchild level as no children are living.
If the same situation occurred in a traditional per stirpes jurisdiction, L and K would each receive ¼ of the estate and S would receive ½ of the estate because the distribution is based upon the child level of A.
The theories of distribution of assets can be used outside of intestacy. Sometimes drafters of wills intentionally use these systems of distribution for all or part of their estate.
For example: "A may give her stocks to her descendants, modified per stirpes."
[Last updated in August of 2023 by the Wex Definitions Team]
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