Per stirpes, per capita and representation, for Tennessee 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. Tennessee’s statutory method where representation is called for (Tenn. Code Ann. §§ 31-2-104(b)(1), 31-2-106).

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. Not Tennessee’s statutory default; a trust that wants it says so in its own words.

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 Tennessee’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. Tennessee’s intestacy statute reaches a trust only where the trust itself sends property to a person’s heirs or issue without saying how to divide it; 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 takes the entire intestate estate where no issue survives, and otherwise the greater of one-third or a child’s share (Tenn. Code Ann. § 31-2-104(a)). Tennessee also gives a surviving spouse an elective share measured by the length of the marriage — 10, 20, 30 or 40 percent of the net estate (Tenn. Code Ann. § 31-4-101(a)) — with a petition filed within nine months after the death (Tenn. Code Ann. § 31-4-102(a)); the amount is reduced by what passed to the spouse from the decedent’s gross estate (Tenn. Code Ann. § 31-4-101(c)) — questions this page explains and the calculator does not compute.

Frequently asked questions

How does Tennessee divide an intestate estate among descendants?

The part of the estate not passing to the surviving spouse goes to the decedent's issue; if they are all of the same degree of kinship to the decedent they take equally, and if of unequal degree, those of more remote degree take by representation (Tenn. Code Ann. § 31-2-104(b)(1)). Where the title calls for representation, it is per stirpes (Tenn. Code Ann. § 31-2-106): the division begins at the children's generation — the calculator's first column, labeled as Tennessee's default.

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

The entire intestate estate where no issue of the decedent survives; otherwise either one-third or a child's share of the entire intestate estate, whichever is greater (Tenn. Code Ann. § 31-2-104(a)).

Does Tennessee have an elective share?

Yes. A surviving spouse may elect an amount measured by the length of the marriage — 10 percent of the net estate for a marriage of less than three years, 20 percent for three to under six years, 30 percent for six to under nine, and 40 percent for nine years or more (Tenn. Code Ann. § 31-4-101(a)) — reduced by the value of everything that passed to or for the spouse from the decedent's gross estate (Tenn. Code Ann. § 31-4-101(c)). The petition is filed within nine months after the death (Tenn. Code Ann. § 31-4-102(a)). Whether and how the share reaches property held in a trust is a question for a licensed Tennessee attorney.

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

The instrument's own words control. Tennessee's statute states what representation means for the intestate title — per stirpes, dividing at the children's generation (Tenn. Code Ann. § 31-2-106) — and a trust that uses the words without defining them is read by a licensed Tennessee attorney against the instrument as a whole; a trust may also define its own scheme or name alternate takers.

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; Tennessee's statute supplies the per stirpes method only where the instrument sends property to heirs or issue without saying how to divide it (Tenn. Code Ann. §§ 31-2-104, 31-2-106). 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 Tennessee law, not legal advice.