The terms *per stirpes* and *per capita* come up often in estate planning documents. They are as confusing to clients as they were to me as a first-year law student. But they are so deeply embedded in the legal vocabulary that they don’t appear to be going anywhere. And, as terms of art, they do convey a bunch of meaning in a few syllables. So let’s take a shot at explaining them.

Both *per stirpes *and *per capita *are used to describe the situation where a person leaves property to someone who predeceases them. Say, for example, that Joel makes a Will leaving his assets to his five children. One of the children, Sam, predeceases him leaving five children of his own. Who gets Sam’s share of Joel’s assets? The answer depends on whether the distribution is made *per stirpes *or *per capita*.

### Per Capita Distribution

*Per capita* is a Latin phrase meaning “by head.” In a pure *per capita *distribution, you simple count the number of heads. Each of them receives an equal amount.

In the above example, assuming Joel’s will left his estate to his children and grandchildren *per capita*, the estate would be divided into 9 shares. Each of Sam’s five children would get one share. The other four shares would be divided among Joel’s four surviving children.

If you think about this, this is not what most people would want to happen. The one-fifth that Sam would have received if he had survived gets transformed into a 5/9 interest in the estate. Over 50 percent of the estate is distributed to Sam’s descendants, to the detriment of Joel’s surviving children.

Another option would be for Joel to leave the property “*per capita* to such of my children as survive me.” But this also has a problem: the entire estate would be distributed in equal quarters to Joel’s surviving children. Sam’s children get nothing.

A final option would be to make the distribution “*per capita *at each generation.” Under this approach, the assets would be divided at the first generation, with one share allocated to each surviving *or* predeceased child. Each surviving child would get one share. The remaining shares would be distributed per capita among the children of any of the predeceased child.

### Per Stirpes Distribution

*Per stirpes* is a Latin phrase meaning “by root” or “by branch.” *Per stirpes *distribution is much more common than *per capita* distribution. It more closely matches how most people would want their property distributed if a child predeceases them. In *per stirpes *distribution, the descendants of any deceased child inherit the share that the child would have taken if the child had survived. This is known as a right of representation.

Going back to our example, in a *per stirpes* distribution, the property would be divided into five equal shares at Joe’s death. Each of Joel’s four surviving children would be entitled one share. The one-fifth share that would have gone to Sam is instead distributed among his descendants in equal shares. Because he has five children, each of them will inherit a 1/25 interest in Joel’s estate. Collectively, this is the same amount that Sam would have inherited had he survived.

Keith Kramer says

My question is, With “per stirpes” what if the heir who dies first has no children but a surviving spouse. This is the situation with my mother-in-laws trust. She has died but the trust has not been divided. Two of the four heirs are married but have no children. What happens to there share of the Trust if one of them die before the Trust is distributed?

Jeramie Fortenberry says

Thanks for the comment Keith. You’re actually talking about a different issue. The terms “per stirpes” and “per capita” usually have reference only to descendants. If there aren’t any descendants, then the per stirpes/per capita distinction is moot. That’s a separate issue from who receives property under the trust. A well-drafted trust will usually cover all scenarios. If there is ambiguity, it may be necessary to petition a court for clarification.

Karen Millward says

I have no children and want to make my brother and sister equal beneficiaries of my IRA. I also want one charitable organization to be the contingent beneficiary. My brother adopted one of my sister-in-law’s chidren. I do not want to pass the IRA amount to that child, because I do not know her. If he should predecease me, how do I ensure that the charitable group gets the benefit and not his child?

J. Harlow says

I’m still not clear. “Per capita at each generation” and “per stirpes” sound like they work out the same way. What is the difference…exactly. If I’m getting this, if a grandchild’s parent predeceases the testator (i.e. the grandparent), s/he (i.e. the grandchild) takes in equal shares with siblings (in the place of the deceased parent) in both instances. No?

And then, let’s say you have two adult children you want to leave property to, but there’s only one of say…ten grandchildren that you want to inherit. Do you say, “to such as my children as survive me per capita…and if neither survives me, then to…and name only that specific grandchild?

Both per stirpes and per capita sound like they assume a grandparent would always want their grandchildren to inherit equally. And this is clearly not always the case.

Thanks!

J.H, Chicago

Jeramie Fortenberry says

J.H. – Thanks for the comment. The difference would come into play if there was more than one predeceased child and each of them had a different number of children. If Dead Child 1 had 5 children and Dead Child 2 had 1 child, each grandchild (i.e., each child of a predeceased child) would get an equal share (by head). In a per stirpes distribution, the amount distributed to the children of Dead Child 1, collectively, would be the same amount distributed to Dead Child 2, individually. This is because each grandchild is taking the share that their parent would have inherited (by root).

Dean says

My grandmaothers will states under residue the following:- At the date of my death my trustees shall divide the residue of my estate into as many equal shares as are necessary to carry out the following provisions,and shall deal with those parts as follows (i) one equal part shall be paid or transferred to Robert ….. if alive at the date of distribution (ii) one equal part shall be paid or transferred to John ….. if alive at the Date of Distribution (iii) one equal part shall be divided in equal shares among such of my grandchildren as are alive on the Date of Distribution …… section 10 of her will has this clause:- Whenever in this will i have directed a division “per Stirpes” among the issue of any person, I intend to designate the children of that person and not his or her remoter issue unless a child of that person is then deceased, in which case I intend that the share to which such deceased child would have been entitled, if living shall in turn be divided equally among his or her children and so on with each representation by a deceased individual at each level by his or her children……. Robert predeceased the grandmother i am Roberts only son what happens to his share. I am led to believe that his part is to be shared out equally to the surviving mentioned beneficiaries.

Nerilyn says

My grandmother is single and left without a will and testament. She has two siblings who died before her. The first one left with two children while the other one has six children. How would the distribution of my grandmother’s property will be if the remaining survivors are her nephews and nieces only?