Chapter 32 - § 32.16 • MEMBERS OF CLASS

• Jurisdiction: Colorado

§ 32.16 • MEMBERS OF CLASS

If property devolves to a class of beneficiaries such as children, issue, or descendants, the question arises as to how the property is allocated among the class members. This may arise in at least two separate contexts:

1) Under the intestacy laws that make statutory provision for a decedent's descendants or other relatives as a class; or
2) Under the law of future interests as to trust distributions to members of a class, and also regarding present distributions under a will from an estate to members of a class under the will.

Historically, such allocations were generally made either per stirpes (per family lines) or per capita (by counting heads). Under the per stirpes approach, a determination is made at an early date — normally the date of creation of the interest — as to the number of family lines. There would be an equal share for each descendant at the closest degree of relationship and one share allocated among the descendants of a deceased descendant. Under the per capita approach, there would be one share allocated to each descendant regardless of the closeness of the relationship, although there is a possible variation that a descendant would not take a share if his or her ancestor (who was also a descendant) is alive and able to take. Descendants historically took per stirpes under the Colorado intestacy statutes.

The concept of "by representation" was introduced in Colorado when the provisions of the Uniform Probate Code were adopted as the Colorado Probate Code. When taking "by representation," intestate takers take using a mix of per stirpetel and per capita concepts, which is a per stirpetel distribution at the highest generation that has a living member. Effective July 1, 1995, the intestate shares of the descendants were redefined as "per capita at each generation." Under the "by representation" and "per capita at each generation" models, the interests would be determined by identifying the highest or most senior generation of descendants that had a then-living member. The shares would be allocated on a per capita basis, with one share to each living member of the class and also one share to the descendants of a deceased member of the class. The distribution would then be basically per stirpetel, but the variation from the earlier model was that the members of the class were determined not at the generation in place when the interest was created, but rather at the generational level that had a then-living class member. Thus, in its simplest application, assume an intestate estate with two children, C1, who had four children — GC1, GC2, GC3, and GC4 — and C2, who had two children — GC5 and GC6. Assume that C1 predeceases. Under the former intestacy statute, with a per stirpetel approach, C2 would take one-half and C1's four children would share one-half. Under the new intestacy model, the results would be the same.

Assume, however, that both C1 and C2 are deceased. Under the historical per stirpetel model, C1's four children would share one-half (each would take one-eighth) and C2's two children would share one-half (each would take one-quarter). Under the by representation model, however, the shares would be determined at the generational level of the grandchildren, so each grandchild would take one-sixth. The statutory result is based on the presumed intent...