Last updated October 8, 2026
When a will, a trust, or the intestacy statutes leave property to someone’s descendants, a distribution system decides how the shares split when a child has died before the person leaving the property. Florida’s default is strict (classic) per stirpes: for intestate estates, “descent shall be per stirpes” (§732.104, Florida Statutes), and for wills, every devise is per stirpes unless the will says otherwise (§732.611). Other states — and many instruments — use per capita with representation or the 1990 Uniform Probate Code’s per capita at each generation (UPC §2-106). This page explains all three and shows each one applied to the same fictional family. It is general information about how the rules compute — not advice about which your plan should use.
The family we’ll use
Maria has three children: Ana, Ben, and Carlos. Ben died before Maria, leaving one child (Bella). Carlos also died first, leaving two children (Carla and Cruz). Ana is living. Every name here is fictional.
Scenario 1 — one child living, two deceased
Strict per stirpes divides at the children’s generation, always: one share per child who is living or who left descendants. Ana takes 1/3; Ben’s 1/3 passes to Bella; Carlos’s 1/3 splits between Carla and Cruz (1/6 each). Per capita with representation divides at the nearest generation with a living member — Ana is living, so it lands on the children’s generation and produces the same result here. The UPC rule starts the same way (Ana takes 1/3), but then pools the deceased children’s shares (2/3) and divides the pool equally among all three grandchildren — 2/9 each. Cousins receive equal amounts: “equally near, equally dear.”
| Person | Strict per stirpes (FL default) | Per capita w/ representation | UPC per capita at each generation |
|---|---|---|---|
| Ana (child) | 1/3 | 1/3 | 1/3 |
| Bella (Ben's child) | 1/3 | 1/3 | 2/9 |
| Carla (Carlos's child) | 1/6 | 1/6 | 2/9 |
| Cruz (Carlos's child) | 1/6 | 1/6 | 2/9 |
Scenario 2 — all three children deceased
Now suppose Ana also died before Maria, leaving one child (Axel). Strict per stirpes still divides by branch at the children’s generation: Axel 1/3, Bella 1/3, Carla and Cruz 1/6 each — the branches stay intact even though no child survived. Per capita with representation now divides at the grandchildren’s generation (the nearest one with a living member): four grandchildren, 1/4 each. The UPC rule reaches the same 1/4-each result here, because every taker stands in the same generation.
| Person | Strict per stirpes (FL default) | Per capita w/ representation | UPC per capita at each generation |
|---|---|---|---|
| Axel (Ana's child) | 1/3 | 1/4 | 1/4 |
| Bella (Ben's child) | 1/3 | 1/4 | 1/4 |
| Carla (Carlos's child) | 1/6 | 1/4 | 1/4 |
| Cruz (Carlos's child) | 1/6 | 1/4 | 1/4 |
Try the arithmetic yourself
Model a family shape — who is living, who left children — and see each system’s exact split. Two generations (children and grandchildren); this is the math of each rule, not a suggestion of which to use.
Child 1
Child 2
- Grandchild 2.1
Child 3
- Grandchild 3.1
- Grandchild 3.2
| Person | Strict per stirpes (FL default) | Per capita w/ representation | UPC per capita at each generation |
|---|---|---|---|
| Child 1 | 1/3 (33.3%) | 1/3 (33.3%) | 1/3 (33.3%) |
| Grandchild 2.1 | 1/3 (33.3%) | 1/3 (33.3%) | 2/9 (22.2%) |
| Grandchild 3.1 | 1/6 (16.7%) | 1/6 (16.7%) | 2/9 (22.2%) |
| Grandchild 3.2 | 1/6 (16.7%) | 1/6 (16.7%) | 2/9 (22.2%) |
Arithmetic only — the exact fractions each rule produces for the shape you modeled, with Florida’s default labeled as what §§732.104 and 732.611 say. Not advice, and not a suggestion of which system any plan should use; that choice is fact-specific attorney work.
Where each rule comes from
Florida — strict per stirpes. §732.104 (intestate descent “shall be per stirpes”) and §732.611 (devises are per stirpes unless the will provides otherwise). Florida courts apply the classic English rule: the division always begins at the children’s generation. The Florida Trust Code’s antilapse provision (§736.1106) likewise substitutes a deceased beneficiary’s descendants per stirpes for trusts, unless the trust says otherwise.
Per capita with representation (sometimes called “modern per stirpes”) is the default in many other states: the division starts at the nearest generation with a living taker.
Per capita at each generation is the 1990 Uniform Probate Code’s rule (UPC §2-106): divide at the nearest generation with survivors, then pool and equalize each lower generation. Florida has not adopted it as a default — an instrument must choose it expressly.
Why the words in your documents matter
Because §732.611 supplies per stirpes only as a default, the distribution language your will or trust actually uses controls. Instruments that say “to my descendants, per stirpes” get Florida’s branch-based division; instruments that spell out “per capita at each generation” get the UPC pooling rule. The difference is invisible while every child is alive — and decisive after. Which system fits a family’s intentions is exactly the kind of judgment to make deliberately, with a licensed Florida attorney if you want advice for your situation.
Questions this topic answers
The guides on this page state what Florida law provides, with the sources. They explain generally and never address your own situation; a question about your own situation is one for a licensed Florida attorney of your choosing.
- What does per stirpes mean in Florida?
- How is per capita at each generation different from per stirpes?
- What does Florida law say happens if my will doesn't name a distribution system?
General information about how Florida law and the UPC compute shares — not legal advice, and not a recommendation of any distribution system. The family above is fictional. Confirm your situation with a licensed Florida attorney. EstateDraftFL is software, not a law firm.
Frequently asked questions
What is Florida's default distribution rule?
Strict (classic) per stirpes. For intestate estates, §732.104, Florida Statutes says descent 'shall be per stirpes.' For wills, §732.611 says all devises are per stirpes unless the will states otherwise. A will or trust can choose a different system by saying so.
What's the difference between per stirpes and per capita with representation?
They give the same result while at least one child is alive. They differ when every member of the first generation has died: strict per stirpes still divides by the deceased children's branches, while per capita with representation divides equally among the nearest generation with a living member.
What does the 1990 UPC do differently?
Per capita at each generation (UPC §2-106) divides at the nearest generation with survivors, but pools the shares of deceased members and splits that pool EQUALLY among the next generation — so grandchildren in different branches receive equal amounts ('equally near, equally dear'). Florida has not adopted this as its default.
Can my Florida will or trust use per capita at each generation?
Yes. The statutes supply a default, not a mandate — an instrument can define its own distribution system in its terms. Which system fits a family is a judgment call to make with a licensed attorney.
General information about Florida law, not legal advice.