Per stirpes, per capita and representation, for Maryland trustees

The three systems, in one sentence each

Strict per stirpes — the division always begins at the children’s generation, one share per child living or deceased with descendants living; a deceased child’s share splits among that child’s own descendants. Maryland’s statutory method for a decedent’s issue — "representation" (Est. & Trusts § 1-210(b), applied by § 3-103).

Per capita with representation — divide at the nearest generation with a surviving member: one share for each survivor there and for each deceased member who left descendants; a deceased member’s share passes down to that member’s own descendants. Maryland uses this nearest-degree division for the issue of a parent, grandparent or great-grandparent (Est. & Trusts § 1-210(c)); for a decedent’s own issue it is not the default.

Per capita at each generation — divide at the nearest generation with survivors; the deceased members’ shares are combined and divided equally among the next generation’s takers, so equally-near relatives take equally. Not Maryland’s statutory default; a trust that wants it says so in its own words.

The same family tree can come out differently under different governing words — which is why the instrument controls. Maryland’s statute defines representation (Est. & Trusts § 1-210), and its rules for construing a will’s gifts by representation or per stirpes apply to an inter vivos trust unless the trust says otherwise (Est. & Trusts §§ 1-210.1, 14.5-112); a trust may define its own scheme or name alternate takers, and reading a particular instrument against the statute is licensed-attorney work. A surviving spouse or registered domestic partner takes the entire intestate estate — one-half where a minor child survives, and the first $100,000 plus one-half of the rest where there is no minor child but there is issue who are not the spouse’s or partner’s (Est. & Trusts § 3-102). Maryland also gives a surviving spouse an elective share of one-third or one-half of the estate subject to election, reduced by the spousal benefits, and a trust revocable at the death is part of that estate (Est. & Trusts § 3-403; Md. Rule 10-803) — questions this page explains and the calculator does not compute.

Frequently asked questions

How does Maryland divide an intestate estate among descendants?

Est. & Trusts § 3-103 divides the net estate equally among the surviving issue by representation, which § 1-210(b) defines: as many equal shares as there are children of the decedent who survive and children who did not survive but left issue who survive; each surviving child takes a share, and each nonsurviving child's share passes to that child's issue by the same pattern. The division always starts at the children's generation — strict per stirpes, the calculator's first column, labeled as Maryland's default.

What is the surviving spouse's intestate share in Maryland?

The surviving spouse or registered domestic partner takes the entire intestate estate; one-half if a minor child survives; and, if no minor child survives but there is surviving issue who are not the spouse's or partner's, the first $100,000 plus one-half of the residue (Est. & Trusts § 3-102).

Does Maryland have an elective share that reaches a trust?

Yes. A surviving spouse may elect one-third of the estate subject to election if issue survive, or one-half if none do, each reduced by the value of the spousal benefits (Est. & Trusts § 3-403); a trust that was revocable at the death is part of the augmented estate (Md. Rule 10-803(a)). The election is made within the later of nine months after the death or six months after the first appointment of a personal representative (Est. & Trusts § 3-407), and the trustee delivers the information to calculate it on the spouse's written request (§ 3-409(a)). The calculation is a question for a licensed Maryland attorney.

What if my trust says "per stirpes" or "by representation"?

Unless a contrary intention expressly appears, a gift by representation or per stirpes to the issue of one person divides into as many equal shares as that person has children who are living, or who left issue living, at the time of distribution (Est. & Trusts § 1-210.1(b)), and § 14.5-112 applies that rule to an inter vivos trust. The instrument's own words control; reading them is licensed-attorney work.

Which distribution rule does my trust use?

The trust instrument's own words decide — a trust may say per stirpes, by representation or per capita at each generation, define its own scheme, or name alternate takers; Maryland's statute supplies the method where the instrument does not (Est. & Trusts §§ 1-210, 1-210.1, 14.5-112). This page shows each rule's arithmetic; reading a particular instrument against the statute is licensed-attorney work.

Do the three systems always produce different shares?

No — while every child is living they produce identical shares. The rules diverge only after certain deaths, which is exactly when the wording in the instrument starts to matter.

General information about Maryland law, not legal advice.