One sentence, and it decides real money
Class gifts to descendants, issue, and other multigeneration classes shall be per stirpes.
Section 736.1103, Florida Statutes. Enacted in 2006 and never amended.
That is the whole section. It answers a question that comes up in almost every family trust and that most people get wrong when they guess.
What per stirpes actually does
Take a settlor with three children. One child has four children of their own; another has one; the third has none.
Per stirpes divides by branch. Each of the three children’s lines takes one third. If a child has died, that child’s third is divided among their own descendants. So the four grandchildren in the large branch share one third between them, and the single grandchild in the small branch takes a whole third alone.
Per capita would divide by head. Every surviving member of the class takes the same amount, so the large branch, having more people in it, collectively takes far more.
Florida’s default is per stirpes, and the reasoning is that people generally think in terms of treating their children equally rather than their grandchildren equally. Whether that reflects any given settlor’s wishes is another matter, which is why the default is displaceable.
It is a default, not a rule
Like everything in this Part, this section yields. Section 736.1101(2) provides that the rules of construction apply unless a contrary intent is indicated by the terms of the trust.
So a trust that says per capita gets per capita. A trust that spells out the division in its own words gets that. And a trust that says nothing gets per stirpes.
The drafting point is worth stating plainly, because this is one of the easiest things to fix while it can still be fixed. If you want the grandchildren treated equally rather than the branches, say so. The default will not do it for you, and the difference between the two can be very large in a family with uneven branches.
First work out who is in the class
This section tells you how a class divides. It does not tell you who is in it, and that question is answered by section 736.1102, which borrows the intestacy rules on paternity and relationships to decide whether adopted persons and persons born outside marriage fall within terms like descendants.
The two work in sequence. Membership first, then division. An adopted adult who is inside the class under section 736.1102 then takes a per stirpes share under this one.
The same phrase elsewhere in the Part
Per stirpes appears again in section 736.1106(2), the antilapse provision. Where a beneficiary of a future interest dies before the distribution date and leaves descendants, a substitute gift is created in those descendants and they take per stirpes what the beneficiary would have received.
That consistency is deliberate. Whether a share is being divided among a class at the outset or passed down because someone died first, Florida’s default is the same. Follow the branch.
No Florida court has cited this section
A search returns no citing documents at any precedential status in any court we searched.
For a one sentence default that is easy to explain. Well drafted trusts specify the division, so the default rarely has to be invoked, and where it is applied a court is more likely to describe the outcome than to cite the section producing it.
We report the nil result as our own review rather than as a certainty.
Frequently Asked Questions
How does a Florida trust gift to descendants divide?
Per stirpes. Section 736.1103 provides that class gifts to descendants, issue, and other multigeneration classes shall be per stirpes.
What is the difference between per stirpes and per capita?
Per stirpes divides by branch of the family. Each of the settlor's children takes an equal share, and if a child has died their share is divided among their own descendants. Per capita divides by head, so every surviving member of the class takes the same amount regardless of which branch they come from.
Can a trust use per capita instead?
Yes. The rules of construction in this Part apply unless a contrary intent is indicated by the terms of the trust, so a trust that says per capita, or that defines the division some other way, will be given effect.
Which classes does the section cover?
Descendants, issue, and other multigeneration classes. A gift to a single generation class, such as to my children, is a different thing and this section is not directed at it.
Where else does per stirpes come up?
In the antilapse provision. Where a beneficiary of a future interest dies before the distribution date, the substitute gift to their surviving descendants is taken per stirpes as well.
Has a Florida court cited this section?
Not that our review found, which is unsurprising for a one sentence default that most trusts address expressly.
Common Situations
The trust says to my descendants. That divides per stirpes unless the trust says otherwise.
One branch has far more people in it. Per stirpes gives each branch the same share regardless.
You want the grandchildren treated equally. Say so. The default does the opposite.
A beneficiary died before distribution. The antilapse substitute gift is per stirpes too.
Sources of Law
- Section 736.1103, Florida Statutes (2025). Enacted by s. 11, ch. 2006-217 and never amended.
- Section 736.1101, Florida Statutes, under which this rule yields to a contrary intent in the terms of the trust.
- Section 736.1102, Florida Statutes, which decides who falls within a class.
- Section 736.1106, Florida Statutes, which applies per stirpes to the antilapse substitute gift.
- Our review searched the Florida Supreme Court, the Florida District Courts of Appeal, the Florida federal district courts, the Florida bankruptcy courts and the Eleventh Circuit on August 16, 2026, requesting every precedential status rather than the default view. We report a nil result as our own review and not as a certainty, and we confirm that a section number actually appears in a decision before relying on it, having now found three search results for statutes whose numbers appear nowhere in the opinions returned.
- Decisions discussed here are published opinions in other parties’ cases. They are not matters handled by this firm and they predict nothing about any reader’s case. No commercial citator pass has been run on this research.
Updated on August 16, 2026. Reviewed by Kevin D. Klagge, Esq., Fla. Bar No. 99502. Attorney Kevin Klagge represents families, businesses, and international clients in estate and tax planning, business structuring, and international law, with a focus on Florida legal tools. He litigates estate and business issues in court. General information about Florida law and published court decisions, not legal advice, and no attorney-client relationship is created. Reading this page does not make us your lawyers. Please do not send confidential details until we have connected.
