PER STIPRES, PER CAPITA, JUST TELL ME HOW MUCH I GET
“My mother’s Will left her estate to the children, `per stirpes,'” says the woman who has come to my office for a consultation. “What does that mean, `per stirpes’?”
Sometimes, lawyers use words or phrases that are unnecessarily complex. A lawyer might say, “my client is impecunious,” when “my client is poor” would convey the same message or “my client doesn’t have any money.”
About a month ago, when my wife asked me a question about something, I said, “There’s probably a treatise on that subject. You should find out and read it.” My wife looked at my as if I had two heads. She thought the word “treatise” was the funniest word.
I insisted that the word was commonplace and that anyone would know its meaning.
The next week when my wife went out to lunch with a number of her friends, she asked them if they had ever heard of the word “treatise.” Apparently none had. But her friend who was graduated from Cornell and worked for a well-known publishing company in its editorial department thought that it had something to do with a book on a particular subject.
For the record, a “treatise” is a scholarly book on a particular subject. In law school, I often found reading a treatise on a particular subject, such as contract law, more helpful than attending class. The treatise I could read again and again, while my notes were constrained by how fast my hand could write and how well I interpreted what I thought the professor said.
So, admittedly, we lawyers sometimes speak a somewhat foreign language. Oftentimes, this foreign language is unnecessary. I think we like to show off, “Hey, look at me, I know a big word. I’m bombastic!”
Yet, there are times when complex or odd or old words or phrases can actually help a person say something that they want to say more clearly than if they try to say the same thing in colloquial English. “Per stirpes” is a perfect example of this.
When a person’s Will states something such as, “I leave my estate to my children, equally, or to his or her issue, per stripes, if the child fails to survive me,” what he means is the following: Assume that a man (let’s call him Joe) has four children. Joe’s Will leaves everything that he owns to his four children, equally. His Will provides that if any of his children die, his child’s issue are to receive the child’s share of his estate “per stirpes.”
Further assume that two of Joe’s children do, in fact, predecease him. One child, Joe, Jr., had three children of his own. The other child, Mary, had five children of her own.
The phrase “per stirpes” literally means “by the branch.” So, in this case, each child was to receive one-fourth of Joe, Sr.’s, estate. Since Joe, Jr., predeceased Joe, Sr., his three children will split his one-fourth share of his father’s estate. Mary would have also received one-fourth of her father’s estate, but since she predeceased her father, her five children will receive her one-fourth share of the estate.
Joe, Sr.’s, surviving children will each receive a full one-fourth share of his estate.
Now, if Joe’s Will stated something such as, “I leave my entire estate to my children, or if a child predeceases me, to his or her issue, per capita, not per stirpes,” the grandchildren would get an equal share of the estate.
“Per capita” means “by the head.” So, using the example from above where Joe, Jr., and Mary predeceased the father, the father’s estate would be divided by ten – the eight grandchildren and the two surviving children.
For the record, I’ve never seen a Will where someone leaves his estate “per capita.” As you can see, it’s typically not a person’s intention that his estate be divided into as many shares as he has surviving relatives. Instead, most people want their grandchildren to receive the parent’s share of the estate.
As odd and as old as the phrase “per stirpes” may be, it’s actually quite helpful. Who says Latin is a dead language.