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Key Facts
- California state level: In a will, trust, or other instrument, “per stirpes” generally creates one branch share for each living child of the designated ancestor and each deceased child who left living descendants.
- California state level: A living child receives that branch’s share; a deceased child’s branch share is divided in the same manner among that child’s living descendants.
- California state level: California Probate Code section 246 treats “per stirpes,” “by representation,” and “by right of representation” as references to the same statutory distribution method, unless the instrument provides otherwise.
- California state level: California’s default intestacy method under sections 240 and 6402 is related but begins at the nearest generation containing living descendants, so it should not be confused with section 246’s child-rooted method for instruments.
Per stirpes is a way to divide an inheritance by family branch. In California wills, trusts, and other transfer instruments, the phrase points to the distribution method in Probate Code section 246 unless the instrument expresses a different rule. The method matters when a named family line includes someone who died before the distribution.
How California’s per-stirpes method works
Section 246 starts with the children of the ancestor identified by the instrument. It creates one equal share for every living child and every deceased child who left living descendants. A living child takes one share, while a deceased child’s share moves down that branch and is divided in the same manner.
A simplified example shows the branch logic. Assume a document leaves property to a person’s descendants per stirpes, and that person had two children, Ana and Ben. Ana is living; Ben died earlier and left two living children. Ana’s branch receives one-half, and Ben’s two children divide Ben’s one-half, receiving one-quarter each.
The percentages follow the family tree, not a head count of everyone alive at the end. In the example, Ana does not receive the same fraction as each grandchild because Ana represents one child-level branch and the grandchildren divide the other branch.
Why the designated ancestor matters
Section 246 measures shares from the children of the “designated ancestor.” The wording of the instrument therefore determines whose family tree supplies the starting point. A gift to “my descendants, per stirpes” and a gift to “Jordan’s descendants, per stirpes” identify different roots even though both use the same distribution phrase.
The California Probate Code also makes expressed intent central. Section 21102 provides that the transferor’s intention, as expressed in the instrument, controls the legal effect of its dispositions; statutory construction rules fill gaps when the instrument does not indicate that intention.
Per stirpes is not the same as California’s section 240 method
California uses another representation system in Probate Code section 240. That method locates the nearest generation containing at least one living descendant and divides shares at that generation among the living members and the deceased members who left living descendants. Each deceased member’s share then moves down to that member’s living descendants.
The two methods can produce the same result when at least one child of the relevant ancestor is alive. They can produce different results when every child has died and the surviving grandchildren are distributed unevenly among the child branches. Section 246 preserves shares at the child-branch level, while section 240 begins at the nearest generation with a living member.
Wills and intestate estates reach representation differently
An instrument can use “per stirpes” expressly. California section 246 also treats “by representation” and “by right of representation” as invoking its child-rooted distribution method, subject to contrary language or intent described in the statute.
Intestate succession applies when property is not effectively disposed of by will. Probate Code section 6400 sends that property to statutory heirs, and section 6402 directs descendants of unequal degrees to the section 240 method. The controlling path therefore depends on whether an instrument disposes of the property and which language or statute governs the transfer.
Anti-lapse can also change who takes
Per-stirpes language is not the only rule that can move a gift to a younger generation. California’s anti-lapse statute, Probate Code section 21110, can allow the issue of certain deceased relatives to take in the deceased transferee’s place under section 240. The statute is limited to the covered family relationships and yields when the instrument expresses contrary intent or a substitute disposition.
A survival requirement can count as contrary intent under section 21110. As a result, identifying the final beneficiary may require reading the distribution phrase together with survival language, substitute gifts, and the anti-lapse statute.
What the phrase does not decide
Per stirpes supplies a share-allocation rule. By itself, it does not decide whether a survival requirement or substitute gift changes who receives a share.
This article addresses only California’s statutory usage.
