Modern Per Stirpes: How It Works (with Diagrams and Examples)

Most state probate codes today use modern per stirpes—not the classical version your great-grandfather’s lawyer would have drafted. But if you have ever tried to look up what “modern” actually changes, the explanations get muddled fast. Modern per stirpes only differs from classic per stirpes in a narrow set of family circumstances, and most clients I talk to in Northwest Arkansas are surprised to learn that the modern approach is the default in their state at all.

This post is the focused companion to my comprehensive per stirpes guide. The pillar covers the full landscape—classic vs. modern, per capita, by representation, trusts, beneficiary designations, every state’s default. Here I am going to do one thing only: explain modern per stirpes in detail, with diagrams, so you can see exactly when it produces a different result and exactly how the math works.

What Modern Per Stirpes Actually Means

Under modern per stirpes—sometimes called “per capita with representation”—an estate is divided into equal shares at the first generation in which there is at least one living descendant. Once that generation is identified, each living member at that level receives one share, and the share of any deceased member at that level passes by representation to that person’s surviving descendants.

That sentence does a lot of work. The phrase that matters most is “first generation with at least one living descendant.” Under classic per stirpes, the initial division is always made at the children’s generation, regardless of whether any child is still alive. Modern per stirpes asks a different question first: Is anyone in the children’s generation still living?

If the answer is yes, modern and classic produce identical results.

If the answer is no, modern drops down to the grandchildren’s generation and divides equally there—and that is where the two methods diverge.

The Only Scenario Where Modern Differs from Classic

I want to underline this because it is the single most common point of confusion: classic and modern per stirpes give the same answer in every case except the case where every member of the children’s generation has predeceased the testator.

If even one of your children is still alive when you die, modern per stirpes behaves exactly like classic per stirpes. The estate is split at the children’s generation. Living children take their share. Deceased children’s shares pass by representation to their descendants.

The divergence only appears when all your children are gone. Then classic still divides at the children’s level—producing branch-by-branch shares that can be wildly unequal among grandchildren—while modern divides equally at the grandchildren’s level.

Worked Example: Three Children, All Predeceased

This is the textbook case. Imagine the following family:

• You have three children: Alice, Bob, and Carol.
• Alice has 1 child.
• Bob has 2 children.
• Carol has 5 children.
• All three of your children die before you do.
• At your death, your only descendants are your 8 grandchildren.

Under Classic Per Stirpes

The division happens at the children’s generation, even though no child is alive:

                    YOUR ESTATE
                   /     |     \
              1/3       1/3      1/3
               |         |         |
            Alice's    Bob's     Carol's
            branch     branch    branch
               |         |         |
            1 child   2 children  5 children
               |       |     |    |  |  |  |  |
              1/3    1/6   1/6   1/15 each (×5)

Alice’s lone child inherits 1/3 of the estate. Bob’s two children each inherit 1/6. Carol’s five children each inherit 1/15. The disparity is stark: Alice’s child takes home five times what each of Carol’s children does, purely because of how many siblings happened to be born into each branch.

Under Modern Per Stirpes

Because no one in the children’s generation is alive, modern drops to the next generation and divides equally among the eight surviving grandchildren:

                    YOUR ESTATE
                         |
                  8 living grandchildren
                         |
                  1/8 each (×8)

Each grandchild receives 1/8 of the estate. The branch identity disappears. Eight living members of the same generation; eight equal shares.

This is the policy intuition behind modern per stirpes: when the generation that “owned” the share has fully passed away, the law prefers equality among the surviving members of the next generation rather than freezing in branch-based proportions that an accident of birth-order can make unfair.

Worked Example: One Child Survives

Now let’s change one fact. Same family, same eight grandchildren, but this time Alice is still alive when you die. Bob and Carol are still gone. Here, classic and modern per stirpes produce an identical result:

                    YOUR ESTATE
                   /     |     \
              1/3       1/3      1/3
               |         |         |
             Alice    Bob's     Carol's
           (alive)    branch    branch
               |         |         |
              1/3    2 children  5 children
                       |     |   |  |  |  |  |
                     1/6   1/6  1/15 each (×5)

Alice takes 1/3 outright. Bob’s two children split his 1/3 (each getting 1/6). Carol’s five children split her 1/3 (each getting 1/15). The result is identical under both classic and modern per stirpes because at least one child is alive—the division is locked in at the children’s generation either way.

This is why I tell clients that the practical difference between classic and modern is much narrower than most online explanations suggest. In the overwhelming majority of estates, where at least one child outlives the parent, the choice between classic and modern is a distinction without a difference.

When the Difference Actually Matters

Mathematically, modern per stirpes only deviates from classic per stirpes when all of the testator’s children predecease the testator. That sounds like an edge case, but it shows up more often than you would think in three situations:

1. Late-life testators. A 95-year-old whose 70-year-old children have already died. By the time the will takes effect, the entire children’s generation is gone, and the inheritance flows directly to grandchildren and great-grandchildren.

2. Tragic accidents. A common-disaster clause is one thing, but in cases where the testator outlives all of their children due to illness, accident, or military service, modern per stirpes produces noticeably different results.

3. Old wills that are never updated. A will drafted in 1985 may name children who have since predeceased the testator. If the will simply says “to my children, per stirpes,” the modern-versus-classic question becomes a live issue at probate.

If any of these situations describes your family, the choice between classic and modern is worth specifying explicitly in the will, not left to the state’s default.

Which States Use Modern Per Stirpes as Default?

Most states that have adopted some version of the Uniform Probate Code (UPC) follow modern per stirpes—or its close cousin, per capita with representation—as the default rule when a will simply says “per stirpes” without further definition. A non-exhaustive list:

State	Default Method	Statutory Basis
Arkansas	Modern per stirpes	Ark. Code § 28-9-205
California	Modern per stirpes	Cal. Prob. Code § 240
Illinois	Per stirpes (modern)	755 ILCS 5/2-1
Ohio	Modern per stirpes	Ohio Rev. Code § 2105.06
Texas	Per capita with representation	Tex. Est. Code § 201.101
Florida	Classic per stirpes	Fla. Stat. § 732.104
New York	Per capita at each generation	N.Y. EPTL § 1-2.16

Florida is the most prominent holdout for the classic approach. New York goes further than either—it uses per capita at each generation, which is a third method altogether. For the full state-by-state breakdown and the differences between these approaches, see my main per stirpes guide and the companion post on per capita at each generation.

“English Per Stirpes” vs. “Modern Per Stirpes”

You may also encounter the phrase “English per stirpes” in academic or international legal sources. In most usage, English per stirpes is synonymous with classic per stirpes—the strict branch-based division that always begins at the children’s generation. The terminology comes from English common-law tradition, which provided the foundation for the classical American rule.

Modern per stirpes, by contrast, is the American statutory innovation that responds to perceived inequities in the strict English approach. So when you see “English per stirpes vs. modern per stirpes” in a textbook or treatise, the writer is contrasting the older common-law rule (classic) with the newer statutory rule (modern). The substantive difference is the same one I described above: modern divides at the first generation with surviving members; English/classic always divides at the children’s level.

How to Specify Modern Per Stirpes in Your Will

Because modern per stirpes is the statutory default in most states, you can usually achieve it simply by writing:

“I give, devise, and bequeath my residuary estate to my descendants, per stirpes.”

In Arkansas, California, Ohio, Illinois, and most other states with modern-per-stirpes statutes, this language will be interpreted under the modern rule by default. No additional specification is needed.

If you want to be belt-and-suspenders—or if your estate touches assets in multiple states with different defaults—you can add explanatory language:

“I give, devise, and bequeath my residuary estate to my descendants, per stirpes (modern), with the initial division to be made at the first generation in which there is at least one descendant of mine then living.”

That phrasing leaves no room for a court in any jurisdiction to apply the classic English rule by mistake.

For drafting purposes in a state that defaults to classic per stirpes (most prominently Florida), you would need to specify modern explicitly the same way. For a state that defaults to per capita at each generation (New York), you would need to specify per stirpes—classic or modern—explicitly to avoid the default. State-by-state drafting nuances live in the main per stirpes pillar.

Frequently Asked Questions

Is modern per stirpes the same as per capita with representation?

In most states, yes—though the precise statutory language varies. Texas and several other states use the phrase “per capita with representation” to mean what other states call “modern per stirpes.” Both refer to the same mechanism: divide at the first generation with living members, with deceased members’ shares passing by representation to their descendants.

What is the difference between modern per stirpes and per capita at each generation?

This is the one that catches most people. Modern per stirpes divides at the first generation with living members and then preserves branch identity below that level. Per capita at each generation goes further: it pools shares at every generation and redistributes equally among living members at each level. The Uniform Probate Code’s default is per capita at each generation, but most states that adopted the UPC modified this rule and use modern per stirpes instead.

Why did states adopt modern per stirpes over the classical approach?

Largely because of perceived fairness in cases where all the testator’s children have predeceased. The classical rule can produce wildly unequal grandchild shares based on branch size—a single grandchild whose only-child parent died might inherit far more than a grandchild from a five-sibling branch. State legislatures concluded that, in the all-children-deceased scenario, equal shares among the surviving generation better matched what most testators would actually want.

Does modern per stirpes apply to trusts and beneficiary designations?

Yes. Modern per stirpes is a method of construction, not a doctrine limited to wills. It applies to revocable living trusts, irrevocable trusts, life insurance beneficiary designations, retirement account beneficiary forms, and any other instrument that names beneficiaries with per stirpes language. See the pillar guide for the full discussion of how per stirpes operates in trusts and beneficiary contexts.

How do you pronounce per stirpes?

Per STIR-peez. The phrase is Latin; the second word rhymes with “stir peas.” You will occasionally hear per STUR-peez, which is also acceptable in American legal practice.

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