Legal Language as Software Code: In Defense of Per Stirpes

The call for “plain English” in estate planning is louder than ever. Clients want documents they can read and understand—something simple, short, and free of “legal mumbo jumbo” like per stirpes. At first glance, it’s a reasonable request. Why confuse a client when we can “just spell it out”?

But we who draft wills and trusts know that simplicity on the surface can create ambiguity beneath. And in estate planning, ambiguity is the enemy.  I recently came across a comment that the words and phrases we as lawyers use are like software code, but written in English.   In our drafting world, phrases like per stripes, per capita, by right of representation, residuary clause, and spendthrift trust are commands triggering a precise and predictable analysis of widely varying data (e.g., unique and disparate client situations). 

Precision and Predictability: Why Per Stirpes Matters

Consider per stirpes. With just two words, it encapsulates centuries of judicial interpretation and provides a command set of instructions to divide an estate among descendants—no matter how complicated the family tree.

We’ve all seen the client who says, “Just give it to my kids, then my grandkids.” Sounds straightforward. But what happens when:

      1.   One child predeceases, leaving two grandchildren behind?

      2.   All three children are deceased.  One dies without issue, another dies leaving three children, the third has leaves one child?

The possibilities multiply, and they demand precision.  Under per stirpes, we know that the shares are distributed at the child level (even if all children are deceased), thus grandchildren and more remote descendants take what their parent, if living, would have received.

Scenario 1: Two children, one alive, one deceased leaving two children.

Per stirpes ensures the surviving child gets half, while the grandchildren split their parent’s share (¼ each).

Scenario 2: Three children, all deceased.  #1 dies without issue, #2 leaves three children, #3 leaves one child?

Per stirpes ensures that each descendant line takes what their parent would have taken.  Per stirpes always divides at the child level, without regard to whether any of the children are living at the time of division.  Children of child #2 receive one-sixth each (1/3 of 1/2), while the child of child #3 receives one-half of the total.  It is a clean, predictable result—a result that would take pages of “plain English” to replicate and explain.

Is “Plain English” Misguided?

As lawyers, we must remember that per stirpes isn’t there to confuse clients.  It is to protect the client. Legal phrases like per stirpes are tools of precision, much like well-tested software code. They are not just words; they are instructions that execute flawlessly across hundreds of scenarios. 

If we abandon precision for vague “plain English” summaries, we invite ambiguity and risk. Each additional word becomes a new opportunity for misinterpretation by courts or heirs. Per stirpes doesn’t need interpretation—it already has a clear meaning, tested and refined over centuries.

The impetus behind “Plain English”, of course, is that some clients struggle to understand the lengthy and sometime complex provisions in their documents and how the various pieces fit together to meet their goals.  A lawyer’s ethical obligations come with a duty to ensure that clients understand the import of the documents we draft.  “Plain English” summaries of documents and estate plans serve that purpose well and are a more appropriate vehicle for simplified explanations than are legal documents that include provisions that have stood the test time.  Nothing builds trust in a counselor more than explaining an estate plan to a client and answering the client’s questions in an honest and clear manner.  And nothing ruins that trust more than documents that invite or require judicial intervention because the untested language used by the lawyer in an effort to “be clear” turns out to be less clear than anticipated.

The Art and Science of Legal Drafting

As estate planners, we balance art and science. The art is in explaining these tools to our clients; the science is in knowing when and how to deploy them. Latin phrases like per stirpes are not relics—they are robust, efficient mechanisms for ensuring clarity and predictability in estate plans.

Before replacing them with verbose explanations, ask yourself: Does “plain English” actually serve the client better, or does it simply make them feel better? In most cases, the answer is clear: precision trumps simplicity.

We owe our clients documents that work—not just documents that read easily or simply.

Conclusion

Per stirpes carries significant weight. Like software code, it is built for efficiency, precision, and reliability. Our job is not to discard these tools but to wield them wisely and explain their value to clients who rely on us to anticipate life’s complexities.

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