When planning your estate, few terms cause more confusion than per stirpes. It sounds like Latin (because it is), and unless you’ve studied estate law, you probably haven’t run into it before. One of the most common questions we hear at Patton Law Group is: “If I leave my estate to my children per stirpes, does that include my spouse?”
The short answer is no, per stirpes does not include your spouse. But the long answer deserves some unpacking. Let’s break it down in plain English.
What Does Per Stirpes Mean?
“Per stirpes” is a Latin term that translates roughly to “by branch.” In the world of estate planning, it’s a method of distributing your estate to your descendants in a way that ensures each branch of your family is represented, even if one of your children passes away before you.
Here’s how it works:
Let’s say you have three children: Anna, Brian, and Carla. You write a will that says, “I leave my estate to my children, per stirpes.” If all three are alive when you pass, they each get one-third.
But let’s say Brian passes away before you do. Under a per stirpes designation, Brian’s one-third share doesn’t disappear or get redistributed to Anna and Carla. Instead, it goes to Brian’s children, your grandchildren, divided equally among them. That’s the heart of per stirpes: keeping inheritance within a branch of the family.
Where Does My Spouse Fit Into That?
Here’s the important part: Per stirpes only applies to your descendants. That means your children, grandchildren, great-grandchildren, and so on. Your spouse is not a descendant; they’re part of your current generation.
So if your estate plan says, “I leave my estate to my descendants, per stirpes,” your spouse is not included. They may receive nothing unless you name them elsewhere in your will or trust.
This is one of the biggest misunderstandings we see: people assume that “my children per stirpes” also includes the surviving spouse, when in fact it excludes them completely. That could result in major unintended consequences.
Example: The Unintended Omission
Imagine this scenario:
- You’re married with two adult children.
- You write a simple will that says, “I leave everything to my children, per stirpes.”
- You assume that your spouse will still “automatically” get something.
- You pass away unexpectedly.
What happens? Your spouse could be left out. Everything goes directly to the children or to their children if they’ve passed away.
This could leave your surviving spouse in a financially vulnerable position, especially if they were depending on that inheritance to cover household expenses, mortgage payments, or retirement costs.
Can I Include My Spouse in a Per Stirpes Distribution?
Technically speaking, you can’t include your spouse in a per stirpes distribution because per stirpes is designed specifically to pass assets down to your lineal descendants—like your children, grandchildren, and so on. But that doesn’t mean your spouse has to be excluded from your estate plan.
There are several ways to make sure your spouse is protected while still using per stirpes for your children and future generations. It all comes down to how you structure your will or trust.
For example, you might choose to leave your entire estate to your spouse first, and only use per stirpes distribution if your spouse passes away before you. You could include language like, “I leave my estate to my spouse, and if my spouse predeceases me, then to my children per stirpes.”
Another option is to create a trust that supports your spouse during their lifetime, with whatever remains going to your children per stirpes after your spouse passes. This kind of flexible estate planning ensures that your spouse is well cared for while still honoring your wishes to provide for your descendants.
What If I Die Without a Will?
If you die without a will in California, what’s known as dying intestate, the state steps in to decide who inherits your assets based on its intestacy laws. And things can get complicated quickly. Generally speaking, if you’re married and have no children, your spouse usually inherits everything.
If you’re married with children, your estate is divided between your spouse and your kids. If you don’t have a spouse or children, your assets go to your parents first. If your parents aren’t alive, then it moves down the line to your siblings, and then to nieces and nephews.
But here’s something important that often gets overlooked: per stirpes, which is a way of distributing assets so that a deceased beneficiary’s share goes to their descendants. However, it doesn’t automatically apply under California’s intestate succession laws. That kind of distribution only happens when you specifically include it in a will or trust. So if you want per stirpes distribution or want to make sure your spouse and loved ones are properly protected, you need to put an estate plan in place. Otherwise, the state makes those choices for you.
Per Stirpes vs. Per Capita: What’s the Difference?
Let’s clear up one more point of confusion. Many people hear “per stirpes” and confuse it with “per capita.” They are not the same.
Per stirpes (by branch): If your child dies before you, their children inherit their share.
Per capita (by head): If your child dies before you, their share is divided equally among all surviving heirs of the same generation.
Using our earlier example with Anna, Brian, and Carla—if Brian dies and has two kids:
- Per stirpes: Anna gets 1/3, Carla gets 1/3, and Brian’s two kids split his 1/3 (each gets 1/6).
- Per capita: Anna, Carla, and Brian’s two kids each get 1/4.
There’s no right or wrong here—it depends on your goals. But the wording matters. A lot.
What Should I Do If I’m Not Sure?
If you’re unsure how your estate plan is structured—or whether your spouse is protected—it’s time to sit down with an estate planning attorney. At Patton Law Group, we help California families create clear, legally sound plans that reflect their wishes and protect the people they love.
Too often, we see estate plans written with good intentions but vague wording. “Leave it to my kids per stirpes” may seem harmless, but it can create big problems if you intended for your spouse to inherit first.
It’s About Clarity, Not Complexity
Estate planning isn’t just about Latin phrases and legal formalities—it’s about making sure your loved ones are cared for when you’re gone. While per stirpes is a useful tool for generational wealth planning, it won’t automatically include your spouse. If you want your spouse to inherit, you need to say so directly.
At Patton Law Group, we’re here to make estate planning as clear, practical, and stress-free as possible. Whether you need a simple will or a comprehensive trust, we’ll help you protect your legacy and avoid costly confusion.
Talk to a Roseville Estate Planning Attorney Today
If you’re drafting your first will or reviewing an older one, make sure the language truly reflects your intentions. Contact Patton Law Group today for a personalized review of your estate plan. We offer compassionate, clear legal advice, and your first consultation is always free.
