Per Stirpes vs Per Capita Estate Distributions

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The estate planning terms "per stirpes distributions" and "per capita distributions" are commonly used in last wills and testaments and revocable living trusts. They describe how you want your property to be left to your beneficiaries.

Per stirpes indicates that if any of your beneficiaries aren't living at the time of your death, their share of the estate will pass to their descendants. Per capita distributions can only go to the named beneficiaries and in equal shares.

Per Stirpes Distributions

The term per stirpes is Latin for “by representation” or “by class.” It means that each living beneficiary in a class of beneficiaries will receive an equal share.

If a beneficiary is deceased and survived by any descendants, that beneficiary’s descendants would take what their deceased parent would have taken “by representation.”

Examples of Per Stirpes Distributions

Let’s assume that you have three children, Ann, Bart, and Carl. Ann has two children: Drew and Eve. Bart, Carl, Drew, and Eve have no descendants.

If your will or living trust states that your property is to be distributed to your “then living descendants, per stirpes,” here’s what happens in different scenarios:

If Ann, Bart, Carl, Drew, and Eve have all survived you:

  • Ann, Bart, and Carl each receive a 1/3 share.
  • Drew and Eve will receive nothing.

If Ann has predeceased you and Bart, Carl, Drew, and Eve have all survived you:

  • Bart and Carl will each receive a 1/3 share.
  • Drew and Eve will each receive a 1/6 share. They take what Ann would have taken by representation and in equal shares, and 1/3 divided by 2 equals 1/6 each.

If Ann, Carl, Drew, and Eve have all survived you and Bart has predeceased you:

  • Ann and Carl will each receive a 1/2 share. A share won’t be created for Bart because he has predeceased you and wasn’t survived by any descendants.
  • Drew and Eve will receive nothing.

If Ann and Drew have predeceased you and Bart, Carl and Eve have all survived you:

  • Bart and Carl will each receive a 1/3 share.
  • Eve will receive a 1/3 share. She takes by representation what Ann would have taken. There's no need to create a share for Drew because he has predeceased you and wasn’t survived by any descendants.

Per stirpes is used in estate planning to cover all the bases in the typical family situation so you won't have to amend your estate plan each time a child is born or a beneficiary dies.

Per stirpes is used more commonly in estate planning than "per capita" because it covers the typical family situation. Make your intentions very clear to your attorney if you don't want this pattern as part of your estate plan. Otherwise, you'll have to change your plan if a child or other beneficiary predeceases you and you no longer want this typical pattern to apply.

Per Capita Distributions

Per capita is Latin for “by head.” All the living members of the identified group will receive an equal share if the beneficiaries are to share in a distribution per capita.

A share won’t be created for the deceased member and all of the shares of the other members will be increased accordingly if a member of the identified group is deceased.

Some people select this option because they want to avoid having a portion of their estate pass into the hands of someone they find undesirable as it could with a per stirpes distribution.

An undesirable or as-yet-unknown in-law might gain control over a portion of an estate if the decedent's son is deceased so his share goes to his child in a per stirpes distribution. The other parent could end up with control over the distribution if that child is still a minor unless other additional provisions are made because children cannot own or control their own property.

A per capita distribution avoids this potential problem.

Examples of Per Capita Distributions

Here’s what happens if your last will and testament states that your property is to be distributed to your “then living descendants, per capita":

If Ann, Bart, Carl, Drew, and Eve have all survived you:

  • Ann, Bart, Carl, Drew, and Eve will each receive a 1/5 share.

If Ann has predeceased you and Bart, Carl, Drew and Eve have all survived you:

  • Bart, Carl, Drew, and Eve will each receive a 1/4 share.

If Ann, Carl, Drew, and Eve have all survived you and Bart has predeceased you:

  • Ann, Carl, Drew, and Eve will each receive a 1/4 share.

If Ann and Drew have predeceased you and Bart, Carl, and Eve have all survived you:

  • Bart, Carl, and Eve will each receive a 1/3 share.

You’ll have to make sure that your estate plan addresses any generation-skipping shares that may be created by this type of arrangement if you prefer to use a per capita distribution.

A Potential Tax Complication

Leaving direct shares to grandchildren and great-grandchildren through a per capita or other type of direct distribution when your children have survived you will trigger the generation-skipping transfer tax on the grandchildren's and great grandchildren's shares. Work closely with your estate planning attorney to ensure that your estate avoids this extra and costly tax.​

Article Sources

  1. Mastry Law. "What's the Difference Between Per Capita and Per Stirpes Beneficiary Designations?" Accessed Aug. 4, 2020.

  2. The Law Dictionary. "What Is Per Stirpes?" Accessed Aug. 4, 2020.

  3. Cornell Legal Information Institute. "Per Capita." Accessed Aug. 4, 2020.

  4. Kentucky Department of Revenue. "A Guide to Kentucky Inheritance and Estate Taxes," Page 10. Accessed Aug. 4, 2020.

  5. Cannon & Thompson, Attorneys at Law. "Should You Choose 'Per Stirpes' or 'Per Capita' Distributions?" Accessed Aug. 4, 2020.