Per Stirpes vs Per Capita in Estate Planning

“Per stirpes” and “per capita” are Latin terms used in estate planning and inheritance law to determine how assets are distributed among beneficiaries when a beneficiary predeceases the individual who left them the inheritance. For example, if your child is your beneficiary under your estate plan, but your child predeceases you, these terms determine who will then inherit your estate. As a Folsom estate planning attorney experienced in inheritance, I believe it is important for clients to know the difference between these two terms. 

They are important because they specify how your assets should be divided among your descendants in your estate plan, including wills, living trusts, and other estate planning documents. The choice between “per stirpes” and “per capita” distribution methods can have significant implications for the distribution of assets. This article will provide some information on the difference between the two. 

1. Per Stirpes Distribution:
   • “Per stirpes” means “by the branch” or “by the roots” in Latin.
   • Under a per stirpes distribution, assets are distributed among branches or lines of descendants, typically along family lines or generational lines.
   • If a beneficiary who is a child of the decedent predeceases the decedent, that beneficiary’s share is divided equally among their own children (the decedent’s grandchildren).
   • Per stirpes distribution ensures that each branch of the family receives an equal share, regardless of the number of beneficiaries in each branch.
   • In California, per stirpes is the default state law. 

Example of per stirpes distribution: Suppose an individual has three children: A, B, and C. Child B predeceases the individual, but leaves behind two children (or, grandchildren to the individual). Under a per stirpes distribution, the assets are divided equally among the three branches: A, B’s two children, and C. As such, A would receive 1/3, each of B’s children would receive 1/6 and C would receive 1/3. 

2. Per Capita Distribution:
   • “Per capita” means “by the head” in Latin.
   • Under a per capita distribution, assets are divided equally among the living beneficiaries at the same generational level, regardless of family branches.
   • If a beneficiary predeceases the decedent, that beneficiary’s share is not passed on to their descendants; instead, it is redistributed equally among the surviving beneficiaries at the same generational level.

Example of per capita distribution: Again, suppose an individual has three children: A, B, and C. Child B again predeceases the individual and leaves behind two children. Under a per capita distribution, the assets are divided equally among the two surviving children, A and C, with no consideration for B’s descendants. As such, A would receive 50%, C would receive 50% and B’s descendants would receive nothing.

Conclusion

The choice between per stirpes and per capita distribution should be clearly specified in your estate planning documents, as it can have a significant impact on how your assets are distributed among your beneficiaries. The decision often depends on your preferences and goals for distributing your estate. A Folsom lawyer experienced in estate planning can help you determine which distribution method aligns best with your wishes and family situation. In the State of California, your estate will default to the per stirpes distribution unless contrary directions are clearly provided for in your estate plan. 

If you have any questions regarding distribution methods or estate planning, please contact Thapar Law at 916-579-0605 or send us a message here.