Florida Per Stirpes: Estate Distribution by Branch

Under Florida law, per stirpes is the default rule for dividing an estate: the property is split into equal shares at the children’s generation, and if a child has already died, that child’s share passes down to their own descendants rather than being redistributed among the surviving siblings.¹ The Latin phrase means “by the root,” and the branch, not the individual, is what the law protects. That default governs both intestate estates and most gifts made through wills, so it shapes the outcome whether or not you leave planning documents behind.

How Florida Divides an Estate By Branch

Each of your children represents a branch of the family tree. The estate is cut into as many shares as there are branches, counting any deceased child whose own descendants are still living. A surviving child takes their branch’s share outright. A deceased child’s share drops one level and is split equally among that child’s descendants.

A worked example makes the arithmetic clear. Say you have three children and an estate worth $900,000. Each branch is entitled to $300,000. If all three children survive you, each simply receives $300,000. If one child dies before you and leaves two grandchildren, those grandchildren split their parent’s $300,000 branch equally and receive $150,000 each. Your two surviving children still take $300,000 apiece. The grandchildren do not receive the same amount as their aunts and uncles because per stirpes preserves the branch, not the headcount.

The branching logic is not limited to your direct descendants. Section 732.104 says descent is per stirpes “whether to descendants or to collateral heirs,” so the same method applies when property passes to your siblings, nieces, nephews, or more distant relatives.¹

Per Stirpes Compared With Per Capita

Confusing per stirpes with per capita is one of the most common drafting mistakes, and the same family tree can produce very different outcomes depending on which method the document uses.

Per stirpes splits the estate at the children’s generation even when some children have died, and a deceased child’s share flows to that child’s descendants. In the example above, each grandchild receives $150,000 and each surviving child receives $300,000.
Per capita to named individuals gives shares only to living beneficiaries. If one of three named beneficiaries has died, the estate splits between the two survivors at $450,000 each, and the deceased beneficiary’s children get nothing unless the will says otherwise.
Per capita at each generation divides shares equally among living members at the first generation that has any living member, then pools any remaining shares and redistributes them equally at the next generation. In the same scenario, the two surviving children and two grandchildren would each receive $225,000.

Florida picks per stirpes as the default for both intestate estates and wills. Section 732.611 provides that all devises to descendants or other multigeneration classes are treated as per stirpes unless the will says otherwise.² If you want a different method, the document has to spell it out.

When Per Stirpes Applies Automatically

Intestate Estates

When someone dies without a valid will, per stirpes drives the distribution at every level of the family tree. If the deceased leaves a surviving spouse and any descendants who are not also descendants of that spouse, or if the spouse has children from another relationship, the spouse takes half of the intestate estate and the other half passes per stirpes to the deceased person’s descendants.³ Where all descendants are shared and neither spouse has outside children, or where there are no descendants at all, the surviving spouse takes the entire intestate estate.

If two of three siblings survive you and the third left children, the nieces and nephews inherit their parent’s share. The rule is the same whether the heirs are your children, your siblings’ descendants, or your cousins.

Wills That Name a Class

Gifts to a group like “my children” or “my descendants” are automatically treated as per stirpes unless your will says otherwise.² The safety net is helpful, but vague class language still invites disputes; naming specific individuals and stating what happens to a share if that person predeceases you removes the guesswork.

Florida’s Anti-Lapse Statute

The anti-lapse statute is where per stirpes quietly rescues a lot of outdated wills. If you leave a gift to someone who is a grandparent or descendant of a grandparent of yours, and that person dies before you, the gift does not simply fail. A substitute gift is created and passes per stirpes to the deceased beneficiary’s own surviving descendants.⁴

You can override this rule with survivorship language such as “if my son survives me.” The trade-off is real: if the beneficiary dies before you and you have used that language, the gift fails entirely unless you named an alternate.⁴

Trusts

Trusts have their own anti-lapse provision. Section 736.1106 provides that when a trust beneficiary with a future interest fails to survive the distribution date and leaves descendants, a substitute gift is created in those descendants per stirpes. This matters because the will anti-lapse statute in Section 732.603 covers only outright devises, not trust interests. If you have a pour-over will feeding a revocable trust, two different statutes are quietly protecting different pieces of your plan, and each has its own rules for when contrary language will displace the default. If no surviving taker exists even after the trust anti-lapse rule applies, the property passes under the transferor’s intestate succession as if death had occurred when the distribution was supposed to happen.⁵

Overriding the Default in Your Will

A clear per stirpes clause in a Florida will usually reads something like: “I give one-third of my estate to my son, John Smith. If John Smith does not survive me, this share shall pass to John Smith’s then-living descendants, per stirpes.” One sentence names the primary beneficiary and maps out the contingency.

If you want a different outcome, put it in writing. Phrases like “in equal shares to my then-living descendants” or “per capita at each generation” override the default, and Florida courts will honor those instructions as long as the language is unambiguous.

Where Per Stirpes Doesn’t Control

Homestead Property

Homestead is where per stirpes planning collides with a constitutional limit. Florida prohibits devising homestead property if the owner is survived by a spouse or minor children, with a single exception allowing devise to the spouse when there are no minor children.⁶ No per stirpes clause in a will can work around that prohibition.

When homestead cannot be devised and the owner is survived by both a spouse and descendants, the spouse takes a life estate and the descendants who are alive at the time of death take the remainder per stirpes. The spouse can instead elect to take an undivided one-half interest as a tenant in common, leaving the other half to pass per stirpes to the descendants.⁷

Non-Probate Assets

Per stirpes governs the probate estate. A large share of most people’s wealth never touches probate and follows its own rules regardless of what a will says or what intestacy provides.

Jointly owned property with rights of survivorship passes automatically to the surviving co-owner.
Life insurance policies, 401(k)s, IRAs, and payable-on-death bank accounts go directly to whoever is named on the beneficiary paperwork.
Property held by a married couple as tenants by the entireties passes automatically to the surviving spouse.

This is where careful per stirpes planning most often unravels. A meticulously drafted will means nothing for a retirement account whose beneficiary designation still names an ex-spouse; the designation controls, and the account goes to the ex-spouse. Reviewing those designations when your family changes is as important as updating the will.

Adopted and Half-Blood Heirs

Because per stirpes divides by branch, who counts as a branch matters. An adopted child is treated as a descendant of the adoptive parents and their family and is no longer considered a descendant of the biological parents, so the child’s branch is grafted onto the adoptive family tree. Three exceptions preserve inheritance rights from the natural family: a stepparent adoption does not sever the tie to the natural parent married to the stepparent; a stepparent adoption after the other natural parent has died preserves the link to that deceased parent’s family; and an adoption by a close relative after both natural parents have died preserves inheritance rights from both natural parents’ families.⁸

When an estate passes to collateral relatives, Florida also distinguishes between whole-blood and half-blood ties. Half-blood relatives inherit only half as much as whole-blood relatives at the same level, though if everyone at that level is half-blood, they all take full shares.¹ In blended families where half-siblings are the closest surviving relatives, that adjustment can meaningfully change the numbers.

1
Florida Senate. Florida Code 732.104 – Inheritance Per Stirpes
2
Florida Senate. Florida Code 732.611 – Devises to Multigeneration Classes to Be Per Stirpes
3
Justia. Florida Code 732.102 – Spouse’s Share of Intestate Estate
4
Online Sunshine. Florida Code 732.603 – Antilapse; Deceased Devisee; Class Gifts
5
Online Sunshine. Florida Code 736.1106 – Antilapse; Deceased Beneficiary; Class Gifts
6
Florida Senate. Florida Code 732.4015 – Devise of Homestead
7
Online Sunshine. Florida Code 732.401 – Descent of Homestead
8
Online Sunshine. Florida Code 732.108 – Adopted Persons and Persons Born Out of Wedlock