§ 28-9-205 — Per stirpes distribution

(a) (1) Heirs will take "per stirpes" if the intestate is predeceased by one (1) or more persons who would have been entitled to inherit from the intestate had such a person survived the intestate. (2) The intestate's estate shall be divided into as many equal shares as there are: (A) Surviving heirs in the nearest degree of kinship to the intestate; and (B) Persons, hereinafter called "predeceased persons", in the same degree of kinship as the heirs mentioned in subdivision (a)(2)(A) of this section, who predeceased the intestate leaving descendants who survived the intestate. (3) Each surviving heir in the nearest degree taking per capita shall receive one (1) share and the descendants of each predeceased person taking per stirpes shall collectively receive one (1) share. (b) (1) If the descendants of a predeceased person are all related to the predeceased person in the same degree, they will take in equal parts the share accruing to them collectively. (2) However, if such descendants are related to the predeceased person in unequal degree, the share accruing to them collectively shall pass per capita to those in the nearer degree and per stirpes to those in the more remote degree according to the formula set out in subdivision (a)(3) of this section. (3) If the descendants of a predeceased person are found in multiple generations, the above formula for division shall be applied in respect to the descendants in each generation. (c) (1) The provisions of this section shall be applied to both real and personal property and to both lineal and collateral heirs. (2) However, if under § 28-9-214 , the inheriting class consists of grandparents and uncles and aunts, or of great-grandparents and great-uncles and great-aunts, the per stirpes rule shall apply when an uncle or aunt, or great-uncle or great-aunt, as the case may be, shall predecease the intestate, leaving descendants. However, it shall not be applied in respect to a grandparent or great-grandparent of the intestate who predeceased the intestate. In this event the grandparent or great-grandparent shall not be counted in determining the number of shares passing to the members of the inheriting class or those taking through them by representation.

Legislative History

Acts 1969, No. 303, § 5; A.S.A. 1947, § 61-135.