Per Stirpes vs. Per Capita Distribution
- Wei Luo
- Aug 6
- 3 min read
Updated: Sep 11
When you pass away, your property will go to the beneficiaries designated in your will or, if you don't have a valid will, to your heirs under the laws of intestacy. The people getting your property might be from different generations (your siblings, children, grandchildren, etc.), and some of them might pass away before you do. The law handles such situations using one of two methods of distribution: per stirpes and per capita. Per stirpes is Latin for "by branch." Per capita is Latin for "by head." These concepts apply to distributions under a will and under intestacy.
Technically, there are two types of per capita distribution--per capita with representation and per capita at each generational level. Per capita with representation often leads to the same results as per stirpes. For simplicity and for purposes of this blog post, per capita will refer only to per capita at each generational level, not per capita with representation.
To see how per stirpes and per capita work, consider the following example.
Say Decedent is the person who has just passed away. During life, he had three children, but Child 1 and Child 2 died before him. Child 1 left behind Grandchild 1, and Child 2 left behind Grandchild 2 and Grandchild 3. Child 3, who is still alive, also has a kid (Grandchild 4).
Under the per stirpes method, we divide Decedent's property equally at the first generation level below him (the child level). Each child is entitled to an equal share (1/3) of Decedent's property. The distribution logic for per stirpes is follows.
Child 1 is supposed to get a 1/3 share, but Child 1 predeceased (passed away before) Decedent, so Child 1 cannot take any property. Instead, Child 1's kid (Grandchild 1) takes Child 1's 1/3 share by representation.
Child 2 is supposed to get a 1/3 share, but Child 2 predeceased Decedent, so Child 2 cannot take any property. Instead, Child 2's kids (Grandchild 2 and Grandchild 3) will equally split Child 2's 1/3 share. Thus, Grandchild 2 and Grandchild 3 each get a 1/3 x 1/2 = 1/6 share.
Child 3 is still alive and will get a 1/3 share. Child 3's kid (Grandchild 4) does not take anything because Child 3 is still alive.
Under the per capita method, we divide Decedent's property equally at the first generation below Decedent that has survivors. Furthermore, we pool the shares of predeceased people at that generational level and equally distribute to their descendants at the level below. Then, we repeat this process at each generational level below. The distribution logic for per capita is follows.
The first generation with survivors is the child level.
At the child level, Child 1 and Child 2 both predeceased Decedent. Together, they are entitled to a 2/3 share of Decedent's property. So, we pool together Child 1's and Child 2's share (2/3 in total), and we distribute it equally to Child 1's and Child 2's descendants (Grandchild 1, Grandchild 2, and Grandchild 3).
Thus, Grandchild 1, Grandchild 2, and Grandchild 3 will each receive a 2/3 * 1/3 = 2/9 share.
Child 3 is still alive and will get a 1/3 share. Child 3's kid (Grandchild 4) does not take anything because Child 3 is still alive.
As you can see, whether your property gets distributed under a per stirpes method or a per capita method can lead to significant differences in what your beneficiaries or heirs receive.
Thickstun Luo LLC may be able to help you write a will to meet your estate planning needs in Illinois or Indiana. Contact us today for a consultation.
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