Intestate SuccessionPer Stirpes v. Per Capita Representation and Why it Matters

When a person dies without a will, intestate, their estate will be distributed according to the controlling state's laws of intestacy. Aside from details regarding the order in which heirs will inherit (e.g. children, parents, siblings, etc.), laws of intestacy also control how those shares will be distributed.

States typically fall within one of two types of representation among descendents: per stirpes and per capita. The relevant language can be found in your state's probate code (or otherwise named legal equivalent). The way in which the estate is distributed determines the actual share that each heir inherits.

  • Per Stirpes- according to this manner of distribution, the estate is divided into equal shares, with one share allocated to each living child of the decedent and one to each predeceased child who has descendants living at the decedent's death.

Thus, the initial division of the estate occurs at the level of the decedent's children, regardless of whether any of them survive the decedent.

  • Per Capita- according to this manner of distribution, the initial division into equal shares, occurs at the nearest generation of descendants which has a member living at the decedent's death.

Here, unlike in a per stirpes system, the initial distribution depends on the heirs surviving the decedent.

Examples

For illustrative purposes, assume we have I (intestate decedent) who has 3 children (A, B,C) and 4 grandchildren (D, E, F, G) whose parents are A and C, B has no children.

If A and C die before I, under a per stirpes system, A, B, and C would each be entitled to a 1/3 share of the estate. A and C's 1/3 shares would then each be divided in half for their children, so that D, E, F, and G would each receive a 1/6 share of the state.

Next, let's assume that A, B, and C all predeceased (died before) I. In a per capita system, the initial distribution would take place at the grandchild level. Because there are only 4 grandchildren, the estate would be divided in 4, thus, D, E, F, and G would each receive a 1/4 share of the estate, rather than the potential 1/6 they would receive under per stirpes.

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