Understanding Heir Distribution: Per Stirpes, Per Capita, and By Representation
When it comes to estate planning, one of the most important (and often confusing) details is how property should be divided among heirs if a beneficiary has already passed away. The legal terms Per Stirpes, Per Capita, and By Representation describe different methods of distribution.
Choosing the right one can make a big difference in how fairly and clearly your legacy is passed on. Let’s break them down with clear examples and visuals.
1. Per Stirpes – “By the Branch”
Per stirpes means “by the branch.” The estate is divided at the first generation (children of the decedent), and if a child has passed away, their share flows down to their descendants.
Example: Anna has three children — Ben (alive), Claire (deceased with two children), and David (deceased with one child).
- Ben receives 1/3.
- Claire’s children split her 1/3 (each receives 1/6).
- David’s child receives his 1/3.
Distribution:
- Ben: 1/3
- Claire’s children (Ella & Frank): 1/6 each
- David’s child (Grace): 1/3
📊 Diagram (Per Stirpes)
Anna
├── Ben → 1/3
├── Claire (deceased)
│ ├── Ella → 1/6
│ └── Frank → 1/6
└── David (deceased)
└── Grace → 1/3✅ Key takeaway: Each branch of the family gets an equal share, no matter how many people are in it.
2. Per Capita at Each Generation – “By the Head”
Per capita at each generation means “by the head.” The estate is divided equally among all living heirs at the same generational level.
Using the same example:
- Ben (alive) takes 1/3.
- Claire’s and David’s shares (2/3 total) are pooled together and split equally among the grandchildren (Ella, Frank, Grace).
Distribution:
- Ben: 1/3
- Ella: 2/9
- Frank: 2/9
- Grace: 2/9
📊 Diagram (Per Capita at Each Generation)
Anna
├── Ben → 1/3
├── Claire (deceased)
│ ├── Ella → 2/9
│ └── Frank → 2/9
└── David (deceased)
└── Grace → 2/9✅ Key takeaway: At each generation, descendants share equally, regardless of how many siblings or cousins they have.
3. By Representation – “Modern Per Stirpes”
By representation is similar to per capita, but with a subtle difference: the estate is first divided at the nearest generation with at least one living descendant. From there, the shares of deceased heirs are pooled and split equally among their living descendants.
Different Example: Anna’s children Ben, Claire, and David all predeceased her.
- Ben had two kids (Alex & Amy).
- Claire had one child (Chris).
- David had three kids (Dana, Drew, Dylan).
By Representation Distribution: All six grandchildren share equally → each gets 1/6.
Per Capita at Each Generation (for comparison):
- Alex & Amy: 1/6 each
- Chris: 1/3
- Dana, Drew, Dylan: 1/9 each
📊 Diagram (By Representation)
Anna
├── Ben (deceased)
│ ├── Alex → 1/6
│ └── Amy → 1/6
├── Claire (deceased)
│ └── Chris → 1/6
└── David (deceased)
├── Dana → 1/6
├── Drew → 1/6
└── Dylan → 1/6✅ Key takeaway: By representation tends to equalize shares across all heirs at the same level, avoiding imbalance between family branches.
Why It Matters
- The method you choose can significantly affect fairness, especially in families with unequal numbers of grandchildren.
- Using the wrong method (or leaving it unclear) can lead to disputes, delays in probate, or even litigation.
At DeCosimo Law, we help you choose the distribution method that reflects your values and ensures harmony for your loved ones.
Next Steps
If you’re unsure how your estate would be divided today:
- Schedule a consultation with us to review your plan.
- We’ll walk through per stirpes, per capita, and by representation in the context of your family.
- Together, we’ll make sure your legacy is passed down with clarity and peace.