SEO METADATA — EDITOR REFERENCE

Title Tag: Per Stirpes vs. Per Capita: Which Protects Your Grandchildren? (2026) - ProbatePedia

Meta Description: The difference between 'per stirpes' and 'per capita' in your will can mean the difference between your grandchildren inheriting their parent's share or receiving nothing. Most wills default to one method without explaining the consequences. Here's exactly what each means with real examples.

Per Stirpes vs. Per Capita: Which Distribution Method Protects Your Grandchildren? (2026)

Last Updated: March 2026 • UPC §2-106; state distribution statutes• Beneficiary Death Series — Article 2 of 6

The Three Distribution Methods — Side-by-Side Comparison

The difference between these methods only matters when at least one beneficiary in the named class has predeceased the testator. If all named beneficiaries survive, all three methods produce the same result.

| ContentCore RuleContentPredeceased Member's Share Goes ToContentLiving Members' Shares Affected?** | | --- | --- | --- | --- | | Per Stirpes (classic / English) | Divide at the first generational level where there are living takers; each living member of that generation takes an equal share; each deceased member's share passes entirely to their descendants by representation | Deceased member's children (and if deceased, grandchildren, etc.) take by representation; share stays within the deceased's family branch | NO — other living members' shares are fixed at the first division; no redistribution | | Per Capita ('strict per capita') | Only LIVING members of the named class receive a share; all shares divided equally among all living members | Nobody — the deceased member's share is redistributed proportionally to the other living members | YES — surviving members' shares increase when a member dies; deceased member's descendants receive nothing | | Per Capita at Each Generation (UPC §2-106) | Combine all shares that would go to deceased members at each generation level; redistribute those shares equally among all descendants at the next lower living generation | Combined 'deceased shares' pool redistributed equally among all descendants at the next generation level — regardless of which family branch they come from | Modified — this is the modern UPC intestacy default; produces different results from classic per stirpes when there are unequal numbers of descendants in each branch |

Example 1: Classic Per Stirpes — The Most Intuitive Result

📋 Family: Helen has 3 children — Alice, Bob, Carol. Bob predeceases Helen, leaving 2 children (Bob's Kids: Dan and Eva). Alice has 1 child (Frank). Carol has no children.

Per Stirpes Distribution of $900,000: • Divide at child level: 3 equal shares of $300,000 • Alice is living → Alice takes $300,000 • Bob is deceased → Bob's share ($300,000) passes to Bob's children (Dan and Eva) equally → Dan: $150,000, Eva: $150,000 • Carol is living → Carol takes $300,000

Result: Alice $300,000 | Dan $150,000 | Eva $150,000 | Carol $300,000 | Frank $0 (Alice is living, so Frank's branch does not receive anything yet)

Most people find this result intuitively correct: Bob's branch gets Bob's share through his children.

Example 2: Per Capita — Often the Unexpected Result

📋 Same family as Example 1. Helen's will says 'equally to my children.' Bob has predeceased.

Strict Per Capita Distribution of $900,000 (to 'children' class, living only): • Only living children count: Alice and Carol • $900,000 ÷ 2 = $450,000 each • Dan and Eva (Bob's children) receive NOTHING

Result: Alice $450,000 | Carol $450,000 | Dan $0 | Eva $0

Most people are surprised and upset by this result. Dan and Eva — Helen's grandchildren — are entirely cut out because their father predeceased Helen. This is the hidden danger of per capita distribution or of failing to use per stirpes language.

Example 3: Per Capita at Each Generation — The UPC Modern Default

📋 Same family. Bob predeceased Helen. Bob has Dan and Eva. Alice is living (has Frank, who is alive). Carol has no children.

Per Capita at Each Generation (UPC §2-106) of $900,000: • Step 1: Divide at child level. Alice ($300,000) and Carol ($300,000) take living shares. Bob's $300,000 goes to the 'pot' for redistribution. • Step 2: At the next generation (grandchildren level), combine Bob's $300,000 with any other undistributed shares. Bob's 2 children (Dan, Eva) are at this level. Alice is alive so Frank does not yet receive anything. • Result: Dan: $150,000 | Eva: $150,000

Total: Alice $300,000 | Carol $300,000 | Dan $150,000 | Eva $150,000 | Frank $0

In this simple case, per capita at each generation = classic per stirpes. The difference becomes apparent in more complex families with multiple deceased members at different levels — see Example 4.

Example 4: Where Per Stirpes and Per Capita at Each Generation Diverge

📋 Family: Robert has 2 children — Sarah and Tom. Both predecease Robert. Sarah has 1 child (Uma). Tom has 3 children (Val, Will, Xavier). Estate: $600,000.

Classic Per Stirpes: • Divide at child level: Sarah $300,000 (goes to Uma) | Tom $300,000 (split equally among Val/Will/Xavier = $100,000 each) • Uma: $300,000 | Val: $100,000 | Will: $100,000 | Xavier: $100,000

Per Capita at Each Generation (UPC §2-106): • Both children deceased → skip child level entirely • Pool the full $600,000 at grandchild level • 4 grandchildren total (Uma, Val, Will, Xavier) → $600,000 ÷ 4 = $150,000 each • Uma: $150,000 | Val: $150,000 | Will: $150,000 | Xavier: $150,000

Key difference: Classic per stirpes favors the branch with fewer descendants (Uma gets $300,000 because Sarah only had one child). Per capita at each generation treats all same-generation grandchildren equally regardless of which branch they come from ($150,000 each).

Which States Use Which Default?

| ContentIntestacy Default MethodContentWills / Trust DefaultContentNotes** | | --- | --- | --- | --- | | UPC States (CO, HI, ME, MA, MI, MN, MO, MT, NE, NJ, NM, ND, SC, SD, UT, etc.) | Per capita at each generation (UPC §2-106) | Per capita at each generation unless document specifies otherwise | UPC changed the intestacy default from classic per stirpes to per capita at each generation in 1990; wills using 'per stirpes' still get classic per stirpes treatment in most UPC states | | California | Per capita at each generation (Cal. Prob. Code §240) | Per capita at each generation is the default; 'by representation' in a CA document means per capita at each generation | ⚠ CA quirk: 'by representation' in CA = per capita at each generation, NOT classic per stirpes; to get classic per stirpes in CA, say 'per stirpes' explicitly or 'by right of representation in the manner of classic per stirpes' | | New York | Per capita at each generation (EPTL §1-2.14 'by representation') | 'By representation' in NY = per capita at each generation | NY also uses 'by representation' to mean per capita at each generation; use 'per stirpes' explicitly for classic distribution | | Texas | Classic per stirpes / by representation | Classic per stirpes is the Texas intestacy default | TX Estates Code §201.101; TX probate practitioners familiar with classic per stirpes | | Florida | Per stirpes (F.S. §732.104) | Classic per stirpes is FL default | FL intestacy uses 'per stirpes'; wills using 'per stirpes' get classic treatment | | Illinois | Per capita at each generation (755 ILCS 5/2-1) | IL intestacy uses per capita at each generation | Use 'per stirpes' explicitly in IL wills to get classic treatment |

⚠️ Critical Warning

California 'By Representation' Does NOT Mean Per Stirpes: This is one of the most common drafting errors in California estate plans. In California, 'by representation' is defined by Probate Code §240 to mean per capita at each generation — NOT the classic per stirpes that most people expect. A California will saying 'to my children, by representation' uses per capita at each generation. If you want classic per stirpes in California, your document must explicitly say 'per stirpes' or describe the classic per stirpes method. Always verify with your California estate planning attorney.

Beneficiary Designations — Per Stirpes on IRA, 401(k), and Life Insurance

Per stirpes vs. per capita applies not only to wills and trusts, but also to beneficiary designations on retirement accounts and life insurance. Most custodians (Fidelity, Vanguard, Schwab, etc.) now offer a 'per stirpes' election on beneficiary designation forms — this is one of the most important checkboxes many people overlook.

| ContentPer Stirpes OptionContentWhat It DoesContentWhat Happens Without It** | | --- | --- | --- | --- | | IRA / Roth IRA beneficiary designation | Most major custodians offer 'per stirpes' check box next to each beneficiary name on the designation form | If named beneficiary predeceases, their share automatically passes to their descendants in equal parts at the next level — no probate, no amendment needed | If no per stirpes election and primary beneficiary has predeceased: share passes to contingent beneficiaries; if no contingent beneficiaries, IRA goes to estate — triggers probate and accelerated 5-year distribution rule | | 401(k) beneficiary designation | Most employer plans offer per stirpes election; check plan documents | Same as IRA | Same as IRA — also triggers ERISA estate complications | | Life insurance beneficiary | Some insurers offer per stirpes; others require you to name contingent beneficiaries explicitly | Per stirpes election extends coverage to deceased beneficiary's descendants | Without per stirpes and no contingent: proceeds may go to estate or surviving named beneficiaries equally — check your specific policy |

Recommended Drafting Language

| ContentRecommended LanguageContentNotes** | | --- | --- | --- | | Classic per stirpes (most intuitive) | 'To [beneficiary], per stirpes' or 'to [beneficiary], and if [beneficiary] does not survive me, to [beneficiary's] then-living descendants, per stirpes' | Works in all states; 'per stirpes' is universally understood in US estate law; avoids California 'by representation' ambiguity | | Equal distribution among grandchildren regardless of branch | 'To my then-living descendants, per capita at each generation' or 'by representation' in states where that means per capita at each generation | Use when you want equality among grandchildren regardless of which child they come from | | Specific contingent beneficiary override | 'To [beneficiary], and if [beneficiary] does not survive me by 30 days, then to [named alternate], per stirpes' | Most explicit; leaves no ambiguity; 30-day survival period also addresses simultaneous death issues |

✅ Verified Data — March 2026

• UPC §2-106: per capita at each generation as default intestacy method — confirmed

• Classic per stirpes: traditional common law method; still default in TX, FL, and non-UPC traditional states — confirmed

• Cal. Prob. Code §240: 'by representation' = per capita at each generation in CA — confirmed; to get classic per stirpes in CA, say 'per stirpes' explicitly

• NY EPTL §1-2.14: 'by representation' in NY = per capita at each generation — confirmed

• TX Estates Code §201.101: per stirpes default for intestacy — confirmed

• F.S. §732.104 (FL): per stirpes default for intestacy — confirmed

• IRA per stirpes election: available at Fidelity, Vanguard, Schwab, and most major custodians — confirmed; check current beneficiary form

• 755 ILCS 5/2-1 (IL): per capita at each generation for intestacy — confirmed

Beneficiary Death — Estate Planning Series:

BD-1 → What Happens If a Beneficiary Dies Before You? Lapse, Anti-Lapse & State Laws

BD-2 → Per Stirpes vs. Per Capita: Which Distribution Method Protects Your Grandchildren?

BD-3 → Contingent Beneficiaries: Your Backup Plan Is More Important Than Your Primary

BD-4 → Simultaneous Death: What Happens When You and Your Heir Die Together?

BD-5 → When a Trust Beneficiary Dies: Remainder Interests, Successor Beneficiaries & Termination

BD-6 → The No-Beneficiary Disaster: What Happens When Your IRA Has No Living Beneficiary

probatepedia.com · /estate-planning/per-stirpes-vs-per-capita/ · BD-2 of 6 · v1.0 March 2026