Per Stirpes and Per Capita: Common Phrases, Commonly Misunderstood
The phrases “per stirpes” and “per capita” are frequently used in wills drafted by lawyers. They refer to the manner in which property is to be distributed between, or amongst, beneficiaries. Despite their frequent use, these phrases are commonly misunderstood.
Generally speaking, the phrase “per stirpes” is taken to describe a manner of distribution to issue (i.e. lineal descendants) where each branch of the family is to receive an equal share of an estate. If a testator divides the residue of her estate amongst her “issue in equal shares per stirpes” it means that, in the first instance, the testator’s children will be entitled to the residue of the estate in equal shares; however, if any child has died leaving children of her own, the children of such predeceased child (the testator’s grandchildren) will receive the predeceased child’s share, and if any grandchild entitled to such a share has died leaving children of her own, the children of such predeceased grandchild (the testator’s great grandchildren) would then be entitled to the predeceased grandchild’s share, and so on.
This method of distribution can be contrasted with a “per capita” distribution. If a testator divides the residue of her estate amongst “issue alive at my death in equal shares per capita,” then all of the testator’s issue, including all children, grandchildren, and great grandchildren etc., would receive an equal share. For example, if a testator is survived by three children, four grandchildren, and one great grandchild, then each descendant would receive one eighth of the residue of the estate.
A helpful diagram comparing “per stirpes” and “per capita” distribution is found here.
Because the phrases “per stirpes” and “per capita” can be misunderstood, some lawyers avoid them all together and others include a clear definition of the phrases in the will.
Thanks for reading,
Saman M. Jaffery