Right of Representation - Washington Wills

“Right of representation” (also called “per stirpes”) is a designation applied to a gift in a will to the descendants of a particular person which provides a clear rule for how the gift should be divided among those descendants. “Right of representation” is similar, but not identical, to the designation per capita at each generation. The difference is that gifts given by right of representation are divided according to the number of branches of descendants a person has instead of according to how many descendants there are in each generation.

A designation like this is necessary for gifts to a person’s descendants because the group of people who comprise a person’s descendants is likely to change over time, which means the exact arrangement of a person’s descendants at the time of the testator’s death cannot be known with certainty at the time the testator executes his or her will, and clear instructions are often needed to ensure the gift can be distributed to the descendants in the right manner. A designation like “right of representation” provides a clear method of distributing a gift to a person’s descendants no matter how many descendants the person has or how distantly each descendant is related to the person.

When a gift is designated to be distributed to a person’s descendants by right of representation, the gift will be distributed to descendants of the person who survive the testator in the following manner:

First, determine which generation of the person’s descendants is the closest generation to the person which includes at least one descendant who survived the testator. For example, if the person has one or more children who survived the testator, then the closest generation with a survivor is the generation made up of the person’s children. On the other hand, if the person has grandchildren who survived the testator, but no children who survived the testator, then the closest generation with a survivor is the generation made up of the person’s grandchildren.
Next, count how many of the person’s descendants who are in the closest generation survived the testator. Then count how many of the person’s descendant’s in that same generation failed to survive the testator, but nevertheless left descendants of their own who survived the testator. Add these two numbers together to arrive at a total.¹ The gift will be divided into a number of equal shares equal to this total. Each of the person’s descendants who survived the testator who are in the closest generation with a survivor will be allocated one of the shares. If all of the shares are allocated in this way, then the process is complete.
If after the above steps there are any shares that have not been allocated, then the process continues. Each deceased descendant for whom a share was created that could not be allocated is treated as having left a surviving “branch” of the family, and for each such branch, one of the unallocated shares will continue to be divided and distributed among the descendants in the branch. For each such branch, separately repeat the counting process from the previous step (step 2., above) for the next closest generation within that branch (regardless of whether it contains surviving descendants). The share of the gift for that branch is divided again, just as it was in step 2., except now with respect to surviving descendants (if any) within this next closest generation. Repeat this process for each generation of each branch (including for new branches created by descendants of later generations) until all of the shares have been allocated to a surviving descendant.

Be aware that when property is given to a person’s descendants by right of representation, the person may have descendants who will not receive a share of the gift if they have a parent or other ancestor who is a descendant of the person and who receives a share.

Examples

Here are example scenarios where gifts are given by right of representation.

Example 1

Imagine that a testator makes a gift in her will of the residue of her estate to the descendants of her best friend, Samantha, to be distributed by right of representation. Imagine also that when the testator passes away, Samantha has had two children, both of whom survive the testator, and has no other descendants.

In this example, the closest generation of Samantha’s descendants which contains a descendant who survived the testator is the generation made up of Samantha’s children. There are two descendants in this generation who survived the testator, and no descendants in this generation who did not survive the testator. Therefore, the gift will be divided into two equal shares, with one share going to each of Samantha’s children.

Note that this result is identical to what would have happened if the gift had been given per capita at each generation.

Example 2

Imagine the same gift as in Example 1, except in this example Samantha has had three children. Her first child survived the testator and has no children of his own. Her second child survived the testator and has three children of his own. Her third child failed to survive the testator and had no children of his own.

In this example, the closest generation of Samantha’s descendants which contains a descendant who survived the testator is, again, the generation made up of Samantha’s children. Again, there are two descendants in this generation who survived the testator, so both of them are counted. There is one descendant in this generation who did not survive the testator, but because this descendant left no descendants of his own, this descendant is not counted. Therefore, the gift will be divided into two equal shares, with one share going to each of Samantha’s children who survived the testator. In this example, Samantha’s three grandchildren will receive nothing because their parent received a share.

Note again that this result is identical to what would have happened if the gift had been given per capita at each generation.

Example 3

Imagine the same gift as in Example 1, except that Samantha has had three children, only the second of which survived the testator. Samantha’s first child had two children of his own before he passed away. Her second child had three children of his own, but is still alive. Her third child had no children before he passed away. All five of Samantha’s grandchildren survived the testator.

In this example, the closest generation of Samantha’s descendants which contains a descendant who survived the testator is, again, the generation made up of Samantha’s children. This time, there is only one descendant in this generation who survived the testator. There are two descendants in this generation who did not survive the testator, but one of these deceased descendants left descendants of his own who survived the testator. Therefore, the gift will be divided into two equal shares, with one share going to Samantha’s only surviving child, and the other share not yet allocated, so the process continues.

The unallocated share is earmarked for the surviving branch of the family that Samantha’s first child created. Samantha’s first child did not survive, but he left surviving descendants who represent his branch of the family. The next closest generation of Samantha’s descendants, within that branch, which contains a descendant who survived the testator is the generation made up of Samantha’s grandchildren in that branch. There are two descendants in this generation of this branch who survived the testator, and none who failed to survive the testator. Therefore, the second share of the gift is divided into two additional shares, with one share going to each of Samantha’s two grandchildren whose father failed to survive the testator.

Note again that this result is identical to what would have happened if the gift had been given per capita at each generation, even though the method of arriving at the result was different.

Example 4

Imagine the same gift as in Example 1, except that Samantha has had three children, only the third of which survived the testator. Samantha’s first child had two children of his own before he passed away, and her second child had three children of his own before he passed away. Her third child survived the testator and has no children of his own. All five of Samantha’s grandchildren survived the testator.

In this example, the closest generation of Samantha’s descendants which contains a descendant who survived the testator is, again, the generation made up of Samantha’s children. There is only one descendant in this generation who survived the testator, Samantha’s third child. There are two descendants in this generation who did not survive the testator, both of whom left descendants of their own who survived the testator. Therefore, the gift will be divided into three equal shares, with one share going to Samantha’s only surviving child, and the other two shares not yet allocated, so the process continues.

The first unallocated share is earmarked for the surviving branch of the family that Samantha’s first child created. There are two descendants in the next generation of this branch who survived the testator, and none who failed to survive the testator. Therefore, the first unallocated share is divided into two additional shares (each worth one-sixth of the original gift), with one share going to each of Samantha’s two grandchildren in this branch.

The second unallocated share is earmarked for the surviving branch of the family that Samantha’s second child created. There are three descendants in the next generation of this second branch who survived the testator, and none who failed to survive the testator. Therefore, the second unallocated share is divided into three additional shares (each worth one-ninth of the original gift), with one share going to each of Samantha’s three grandchildren in this branch.

Note that this is a very different result from how the shares would have been allocated had the gift been given per capita at each generation.

Example 5

Imagine the same gift as in Example 1, except that Samantha has had three children, all of whom failed to survive the testator. Samantha’s first child had two children of his own before he passed away, and her second child had three children of his own before he passed away, leaving Samantha with five grandchildren, all of whom survived the testator, and none of whom have any children of their own.

In this example, the closest generation of Samantha’s descendants which contains a descendant who survived the testator is the generation made up of Samantha’s grandchildren. There are five descendants in this generation who survived the testator, and no descendants in this generation who failed to survive the testator. Therefore, the gift will be divided into five equal shares, with one share going to each of Samantha’s grandchildren.