854.04 Representation; per stirpes; modified per stirpes; per capita at each generation; per capita.

(1) By representation or per stirpes.

(a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person “by representation," “by right of representation," or “per stirpes," the property is divided into equal shares for the designated person's surviving children and for the designated person's deceased children who left surviving issue. Each surviving child and each deceased child who left surviving issue are allocated one share.

(b) The share of each deceased child allocated a share under par. (a) is divided among that person's issue in the same manner as under par. (a), repeating until the property is fully allocated among surviving issue.

(2) Modified per stirpes.

(a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person by “modified per stirpes", the property is divided into equal shares at the generation nearest to the designated person that contains one or more surviving issue. Each survivor and each deceased person in that same generation who left surviving issue are allocated one share.

(b) The share of each deceased person allocated a share in par. (a) is divided among that person's issue in the same manner as under par. (a), repeating until the property is fully allocated.

(3) Per capita at each generation.

(a) Except as provided in subs. (5) and (6), if a statute or a governing instrument calls for property to be distributed to the issue or descendants of a designated person “per capita at each generation," the property is divided into equal shares at the generation nearest to the designated person that contains one or more surviving issue. Each survivor in that generation and each deceased person in that generation who left surviving issue are allocated one share. The shares of the deceased persons in that same generation who left surviving issue are combined for allocation under par. (b).

(b) The combined share created under par. (a) is divided among the surviving issue of the persons whose shares were combined in the same manner as under par. (a), as though all of those issue were the issue of one person. The process is repeated until the property is fully allocated.

(4) Per capita. Except as provided in sub. (6), if a statute or governing instrument calls for property to be distributed to a group or class “per capita", the property is divided into as many shares as there are surviving members of the group or class, and each member is allocated one share.

(5) Certain individuals disregarded. For the purposes of subs. (1) to (3), all of the following apply:

(a) An individual who is deceased and who left no surviving issue is disregarded.

(b) An individual who has a surviving ancestor who is an issue of the designated person is not allocated a share.

(6) Contrary intent. If the transfer is made under a governing instrument and the person who executed the governing instrument had an intent contrary to any provision in this section, then that provision is not applicable to the transfer. Extrinsic evidence may be used to construe the intent.

History: 1997 a. 188; 2005 a. 216.

A will clause providing for “equal shares to the then living issue of donor's three daughter-beneficiaries in this trust, and/or the then living issue of any deceased issue of donor's three daughter-beneficiaries, by right of representation" required distribution per capita among the grandchildren and by representation among their children. In re Bowler Trust, 56 Wis. 2d 171, 201 N.W.2d 573 (1972).

NOTE: The preceding case was decided prior to the adoption of 1997 Wis. Act 188, which made extensive revisions to the Wisconsin Probate Code.