## Per Stirpes or Per Capita Distributions

Contents

While Latin may be a dead language, it remains relevant to estate planning lawyers and their clients when choosing how to prepare for the distribution of an estate through a will or living trust. “Per Stirpes” literally means “by roots or stocks; by representation” and is used interchangeably with “right of representation” by estate planning attorneys when referring to a particular method for distributing assets of a decedent. An estate is distributed *per stirpes* if each “branch” of a family is to receive an equal share of the estate assets.

Another common method for distributing assets is referred to as “per capita”. Using ther method, each member of the same generation of a decedent will receive an equal share of the decedent’s estate.

### Examples of Per Stirpes and Per Capita Distributions

A good way to illustrate the differences between these two types of distribution methods is by providing examples of each.

**Per Stirpes Example #1:**

The decedent “*A”*, specifies in her living trust that her estate is to be divided among her descendants in equal shares *per stirpes*. *A *has three children, *B*, *C*, and *D*. *B* is already dead, but has left two children (grandchildren of *A*), *B1* and *B2*. Pursuant to a distribution *per stirpes*, the living children of the decedent, *C* and *D* each receive one-third of the estate, and *B1* and *B2* each receive one-sixth (*B’s* 1/3^{rd} share). *B1*and *B2* constitute one “branch” of the family, and collectively receive a share equal to the shares received by branches *C* and *D*.

**Per Stirpes Example #2:**

Assume the same facts as Example #1 except grandchild *B1* has predeceased *A*, leaving two children *B1a* and *B1b*, and grandchild *B2* has also died leaving three children *B2a*, *B2b* and *B2c*. In this case, distribution *per stirpes* would result in a distribution of one-third each to *C* and *D*, one-twelfth each to *B1a* and *B1b*, who would constitute a branch, and one-eighteenth each to *B2a*, *B2b* and *B2c, *which again totals *B’s* one-third share. Thus, the *B*, *C*, and *D* branches receive equal shares of the whole estate, the *B1* and *B2* branches receive equal shares of the *B* branch’s share, *B1a* and *B1b* receive equal shares of the *B1*branch’s share, and *B2a*, *B2b* and *B2c* receive equal shares of the *B2* branch’s share.

**Per Capita Example #1**:

Assume the same facts as in the Per Stirpes Example #1. Under the *per capita* method of distributing the estate, since children *C* and *D* survive, the estate is divided at their generation. There were three children, so each surviving child receives one-third. The remainder – *B* ’s share – is then divided in the same manner among *B* ’s surviving descendants. The result is the same as under *per stirpes* because *B* ’s one-third is distributed to *B1* and *B2* (one-sixth to each).

**Per Capita Example #2:**

However, the *per capita* and *per stirpes* results differ if *D* also pre-deceased *A* with one child, *D1*. Under the *per stirpes *method, *B1* and *B2* would each receive one-sixth (half of *B* ’s one-third share), and *D1* would receive one-third (all of *D* ’s one-third share). Under *per capita*, the two-thirds remaining after *C* ‘s one-third share was distributed would be divided equally among all three children of *B* and *D*. Each grandchild would therefore receive two-ninths: *B1*, *B2*, and *D1* would all receive two-ninths.

### Summary

As you can see through these examples, the *per capita* distribution method is generally more generous to grandchildren of larger families. In other words, where a decedent has more than one child and one or more of the decedent’s children has more children (grandchildren of the decedent) then his or her siblings, those grandchildren of the larger family typically stand to receive a larger share of the decedent’s estate than under the *per* *stirpes* method of distribution. On the other hand, grandchildren of smaller families tend to receive less, since some of the share which they might receive under the *per* *stirpes* method is divided among the other beneficiaries of their generation.

Depending on the state, there are many variations on these types of distribution methods. Choosing per stirpes or per capita, or another method for dividing assets of your estate is but one of many important issues which must be considered by estate planning lawyers and clients when preparing wills and trusts since these choices can have long-term consequences for families.