Per stirpes

Also called: Representation.

Where the statute uses it: Minn. Stat. § 524.2-709

What it means

Minnesota does not treat “per stirpes” as a term of art the drafter has to define. Section 524.2-709 prescribes the division by statute, and it attaches the same formula to “representation” in the same breath.

If an applicable statute or governing instrument calls for property to be distributed by "representation" or "per stirpes," the property is divided into as many equal shares as there are (i) surviving children of the designated ancestor and (ii) deceased children who left surviving descendants. Each surviving child, if any, is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner, with subdivision repeating at each succeeding generation until the property is fully allocated among surviving descendants.

Two words in there do more work than they look like. The shares are counted at the children of the designated ancestor — not at the nearest generation with a living member — so the division happens at the children’s level whether or not any child is alive. And the counting happens on the distribution date, which paragraph (a)(2) defines as the time the interest is to take effect in possession or enjoyment, not the date of death.

Paragraph (b) is a rule of construction, not a command. Section 524.2-701 governs the whole of the part it sits in: “[i]n the absence of a finding of a contrary intention, the rules of construction in this part control the construction of a governing instrument.” They reach a governing instrument of any type, except where a particular section limits itself by its terms. A drafter who wants a different division can write one and the statute yields.

The alternative has to be asked for by name. Paragraph (c) gives “per capita at each generation” its own formula, dividing at the nearest generation containing a living descendant. A Minnesota instrument that says “per stirpes” or “representation” and nothing beyond those words gets paragraph (b).

Where the word shows up

In the residuary clause of nearly every will and revocable trust, attached to a gift to the maker’s descendants. Under § 524.2-709(d) two people drop out of that formula: a deceased individual who left no surviving descendant is disregarded entirely, and an individual who leaves a surviving ancestor who is a descendant of the designated ancestor is not entitled to a share — the living parent takes, and the child of that living parent does not.

Which section supplies the meaning depends on where the word came from. Section 524.2-106 governs “representation” called for by the intestacy article, and for the decedent’s own descendants it produces the same division at the children’s level; for descendants of parents or grandparents it uses a nearest-generation rule instead. Section 524.2-709 governs what a governing instrument means. Which section applies depends on whether the word came from a document or from the intestacy statute.