Distributions and per stirpes: who takes what when a beneficiary died first

The trust's words come first

Distribution questions start in the instrument. A trust may name alternate takers, condition survival, or define its own division scheme — and where it does, those terms govern. The statutory rules below are the backdrop the drafters wrote against, and the meaning courts give the shorthand the document uses.

What per stirpes means in Florida

§732.104 provides that descent per stirpes divides at the generation nearest the ancestor, one share for each living member and one for each deceased member who left descendants — a deceased child's share passing down that child's own line. Florida's intestacy rules (§§732.101–732.111) use this scheme, and countless trusts adopt it by reference.

Two neighboring systems appear in other states' documents and in older instruments: per capita with representation, and the 1990 Uniform Probate Code's per-capita-at-each-generation rule. They can produce different shares from the same family tree — which is why the same facts can come out differently under different governing language.

Worked example

Suppose a trust leaves the residue to the settlor's three children per stirpes, and one child died earlier leaving two children of her own. Under §732.104's scheme the division is into three at the children's generation: the two living children each take one third, and the deceased child's one third divides between her two children — one sixth each. The Learning Center's Distribution Calculator models trees like this under all three systems, side by side, as exact fractions.

Antilapse rules (§§732.603 and 736.1106 for trusts) can also preserve a gift for a predeceased beneficiary's descendants in defined circumstances — one more reason the instrument's exact words, read against the statutes, decide these questions. Where real shares and real money turn on the reading, a licensed Florida attorney is the right reader.

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