No. A per stirpes designation does not include a spouse. The term directs assets straight down a family tree to lineal descendants, and a spouse joins the family by marriage rather than by birth or adoption, which places them outside that line. When a named beneficiary dies before the person leaving the inheritance, their share passes to their children and grandchildren, not to their husband or wife.
How the Branching Actually Works
Per stirpes means “by branch.” The estate is split into equal shares at the first generation of beneficiaries, and each branch keeps its share whether or not the person at the top of that branch is still alive. If they’ve died, their portion flows down to their own descendants instead of being redistributed among the surviving branches.1Legal Information Institute. Per Stirpes
Picture a mother who names her three children as equal beneficiaries per stirpes. Each child’s branch takes one-third. If one child has already died and left two kids of their own, that one-third does not get divided between the two surviving siblings. It splits between the two grandchildren, who each receive one-sixth of the estate. The two surviving children still receive their original one-third shares, untouched. The deceased child’s spouse, no matter how long the marriage or how close the relationship, receives nothing.
The branching keeps going down indefinitely. If one of those grandchildren had also died leaving children, the grandchild’s share would split among those great-grandchildren. Assets always move down, never sideways to siblings, and never across to a spouse.
Who Counts as a Descendant
A descendant is someone born in a direct biological line from another person: children, grandchildren, great-grandchildren, and so on. The legal definition also extends to people adopted into the family.2Legal Information Institute. Descendant Under a per stirpes clause, only these people can inherit through the branching structure.
Adopted children hold the same inheritance rights as biological children in every state. An adopted grandchild sits in exactly the same position as a biological one when a share passes down through a deceased parent’s branch.
Stepchildren are a different story. Unless a stepchild has been formally adopted by the decedent or by the beneficiary whose branch they would inherit through, they have no claim under per stirpes. A stepchild raised from infancy still falls outside the definition of “descendant” without that adoption. Some states recognize a narrow doctrine called equitable adoption where there is clear evidence someone intended to adopt but never completed the process, but relying on it is a gamble no estate planner would recommend.
Why Spouses Sit Outside the Structure
Per stirpes is built around bloodlines and legal parent-child relationships. A spouse is on the same generational level as the beneficiary they married, not a level below. Because the whole mechanism moves assets downward through generations, a spouse simply has no slot to occupy. When a child dies before the testator, the per stirpes clause sends that child’s share straight to the grandchildren and skips the surviving husband or wife entirely.
That design reflects a deliberate priority: keeping assets inside the testator’s own family tree. If a deceased child’s spouse inherited and later remarried, the assets could eventually pass to a completely different family. Per stirpes prevents that by routing everything through direct descendants. Whether or not the logic matches your intentions, it is how every probate court reads the designation.
The exclusion applies regardless of the length or closeness of the marriage. A son-in-law who spent decades in the family is treated the same as one married for six months. This is the single most important thing to understand about per stirpes, and it is the reason many estate plans need additional language to reach the result the testator actually wants.
Where This Trips People Up: Beneficiary Forms
Per stirpes does not only appear in wills and trusts. Many retirement accounts, life insurance policies, and transfer-on-death accounts let you check a per stirpes box next to a beneficiary’s name. Checking that box creates the same branching structure that would exist in a will. If the beneficiary dies before you, their share passes to their descendants, not to their spouse and not redistributed among the other named beneficiaries.
For life insurance, this works cleanly. Name three children as equal primary beneficiaries per stirpes, and if one child predeceases you, that child’s third splits equally among their own children. The surviving two children keep their thirds. The deceased child’s spouse gets nothing from the policy.
Retirement accounts follow the same rule when per stirpes is selected, but the tax picture is more complicated. A spouse who inherits a retirement account directly has more distribution options than a non-spouse beneficiary.3Internal Revenue Service. Retirement Topics – Beneficiary When per stirpes sends a share to grandchildren instead, those grandchildren face different, and often less favorable, required distribution timelines. Worth raising with a financial advisor before you check the box on a retirement account form.
How to Provide for a Child’s Spouse If You Want To
If you want a child’s spouse to receive something in the event your child dies before you, per stirpes alone will not do it. You need additional or alternative language.
- Name the spouse directly. The simplest option is to list the spouse as a beneficiary in their own right, whether primary or contingent. A will might read: “To my son John, and if he predeceases me, to his wife Sarah.” That overrides per stirpes for that share.
- Split the share between spouse and descendants. You can direct that a deceased child’s share go partly to the surviving spouse and partly to the children in specified proportions, for example half to the spouse and half to the children per stirpes.
- Use a trust with spousal provisions. A trust can provide income or distributions to a surviving in-law for their lifetime while preserving the principal for the grandchildren. Access can be broad or narrow, from full discretionary distributions to income only.
- Add a remarriage clause. Some testators want to support a child’s spouse only for as long as they remain unmarried. Trust language can restrict or terminate distributions if the surviving spouse remarries, so the assets eventually return to the grandchildren rather than flowing to a new spouse’s family.
Each approach has tradeoffs. Naming a spouse directly is clean but does not account for divorce; if your child divorces and you never update the plan, the ex-spouse may still inherit. A trust is more flexible but adds administrative cost. An estate attorney can draft language that matches your actual intent rather than forcing a choice between rigid options.
A Separate Question: Your Own Spouse
The per stirpes question almost always involves the spouse of a deceased beneficiary, meaning your child’s husband or wife. There is a completely separate protection for the testator’s own surviving spouse that sometimes gets confused with per stirpes.
Every state has some form of rule that prevents one spouse from fully disinheriting the other. In most states this takes the shape of an elective share, which lets the surviving spouse claim a fixed portion of the deceased spouse’s estate regardless of what the will says. The typical elective share ranges from one-third to one-half, with the exact amount and calculation varying by state. Community property states handle it differently, giving each spouse automatic ownership of half the marital property.
The elective share is not automatic. A surviving spouse has to affirmatively choose it, usually by filing a written election with the probate court within a set deadline. It can also be waived in a prenuptial or postnuptial agreement. This right sits entirely outside per stirpes: it protects the testator’s own spouse, while per stirpes governs how assets flow to descendants. The two rules run on parallel tracks and do not interact unless the estate plan is poorly drafted.