Estate of Evans Sheds Light on Per Stirpes

In Estate of Evans,the distinction made between strict per stirpes and modern per stirpesillustrated the importance of defining terms in documents.

The only heirs of the decedent were his nephew from onebrother and two nieces from his other brother. The Nebraska intestacy statute provided that the estate be divided intoas many shares as there are “surviving heirs in the nearest degree of kinship.”

The nephew argued for a “strict” per stirpes interpretation,also known as “classic” or “English” per stirpes, where the division wouldbegin at the generation closest to the decedent, regardless if there were anysurvivors in that generation.  Under thisapproach, 50 percent goes to the nephew and 50 percent is divided between the nieces.

However, Nebraska’s intestacy statute was based on the 1969version of the Uniform Probate Code, which applies the modern or “American” perstirpes approach.  Thus, the divisionbegan at the first generation with living issue, which divided the estate equally three ways between the nephew and two nieces. 

See John T.Brooks, English or American Per Stirpes,Wealth Management, June 25, 2013.