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What is the Difference Between Per Capita, Per Stirpes, and Per Capita with Representation Distributions?
March 7, 2011 by Rania Combs
Per stirpes and per capita are commonly used terms in wills, trusts, and intestate distribution statutes to describe how a deceased person's estate is to be distributed to his or her beneficiaries or heirs. But figuring out what these words mean can get a bit confusing. Below is an explanation of each type of distribution.
Per Stirpes
Per stirpes is the Latin term that literally means "by the roots." If an estate is distributed per stirpes, each living member of a group of beneficiaries closest to the person making the distribution will receive an equal share of the estate.
However, if one of the beneficiaries predeceases the person making the distribution, that beneficiary's descendants will take by representation the share of the estate to which their parent would have been entitled.
By way of illustration, let's assume:
Jack had three children, Adam, Bill, and Carl
Adam has two children, David and Evan
Bill has one child, Frank, and
Carl has three children, Grant, Henry and Ian.
In his will, Jack specifies that his estate is to be distributed to his descendants, per stirpes.
If Jack is survived by Adam, Bill, and Carl, each of his children would be entitled to 1/3 of his estate.
However, if Adam predeceases Jack, Bill and Carl will each be entitled to 1/3 of Jack's estate, and Adam's share will be divided equally between his children, David and Evan. Jack's other grandchildren would not be entitled to any portion of the estate.
Per capita is a Latin term that literally means "by the head." If an estate is distributed per capita, all the living members of an identified group will receive an equal share of the decedent's estate.
However, if a member of the identified group predeceases the decedent, then his or her share would pass to the other members of the group rather than to his descendants.
Using the same illustration as we did earlier, if Jack's will specifies that his estate is to be distributed to his children who survive him, per capita, and all his children survive him, then the result will remain the same – each of his children would be entitled to 1/3 of Jack's estate.
However, if Adam predeceases Jack, then Adam's share would be split between Bill and Carl, with each of them receiving a ½ share. None of the grandchildren would be entitled to any part of the estate.
Per Capita with Representation
Texas' laws of intestate succession specify that if all the heirs are of the same degree of relationship to the decedent, meaning they are all children, or all grandchildren, then the estate will be distributed per capita.
However, if they are not of the same generation, for example if children and grandchildren survive, then the younger generation will only be entitled to the that portion of the estate that older generation would have received had they survived.
Using our example, if Jack's will specifies that his estate is to be distributed to his children, per capita with representation, and all his children survive him, then the result will remain the same – each of his children would be entitled to 1/3 of Jack's estate.
If Adam predeceases Jack, Bill and Carl will each be entitled to 1/3 of Jack's estate, and Adam's share will be divided equally between his children, David and Evan. But, if all Jack's children predecease him, then each of the grandchildren would be entitled to an identical share of Jack's estate.
In contrast, a strict per stirpes distribution would have required that the grandchildren share what their parents would have been entitled to had they survived. So, in our example, David and Evan would share 1/3, Frank would get 1/3, and Grant, Henry and Ian would share 1/3, meaning that each of the grandchildren would receive a different share of the estate.
Great illustration, I am using as a teaching tool in a genealogy class, thanks for your help
I am not sure this is accurate. I think in the example of Adam predeceasing Jack, under a per capita distribution, Bill and Carl will each receive 1/3 and Adam's children will each receive 1/6. If Adam had no issue, then yes, Bill and Carl would receive 1/2 each..
Essentially your examples imply that what distinguishes a per capita distribution from a per capita with representation distribution is that in the former only the first generation with living takers will take anything. But that is not the difference. In both per capita, and per capita with representation the issue of a predeceased beneficiary will be entitled to a share, it is a question of whether they are entitled to their parents' share or whether each member of a generation gets the same share. Under per capita, for every generation that takes, all members of the generation get an equal share. And under per stirpes and per capita with representation, members of the FIRST generation that takes gets an equal share, but the children of a beneficiary that died before the testator will get their parents' share (which could result in some grandchildren getting more than other grandchildren.) The difference between per stirpes and per capita with representation would only be evident in your examples when all the beneficiaries die before the testator, because in that case per capita with representation will operate like per capita distribution and all the grandchildren will get the same amount, whereas with per stirpes it will operate the same way as if some beneficiaries were still alive, that is, each set of grandchildren will get their parents' share.
Rania Combs
Thanks for your note. In a pure per capita distribution, you count the number of heads of the identified group. So if, as in the example, a distribution is made to "my children who survive me, per capita," then the entire estate would only be distributed to the living children. Children of a deceased child would not receive anything.
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