Per Stirpes and Per Capita in Estate Planning: What's the Difference?

Estate planning involves making critical decisions about how assets will be distributed after a person’s death. Two key terms often encountered in this field are per stirpes and per capita. These Latin phrases, rooted in ancient legal traditions, define how assets are divided among beneficiaries, particularly when some beneficiaries predecease the estate owner. Understanding their origins, modern definitions, and practical applications is essential for anyone creating a will or trust. This article explores the historical background of these terms, their current meanings, and how they function in estate planning, with examples to illustrate their differences in real-world scenarios.

Historical Origins of Per Stirpes and Per Capita

The terms per stirpes and per capita trace their origins to Roman law, where they were used to determine inheritance patterns in a society heavily focused on family lineage and property rights. Per stirpes, meaning "by the roots" or "by the branch," reflects the Roman emphasis on preserving family lines. Under Roman law, if an heir predeceased the testator (the person making the will), their share would pass to their descendants, ensuring that the family branch continued to benefit from the estate. This system prioritized the continuity of familial inheritance, aligning with the Roman value of maintaining wealth within bloodlines.

Per capita, meaning "by the head," also has roots in Roman law but was applied differently. It referred to a distribution method where each living heir received an equal share, regardless of their familial branch. If an heir predeceased the testator, their share was redistributed equally among the surviving heirs, rather than passing to their descendants. This method emphasized equality among living individuals, rather than preserving family branches.

These concepts were later adopted into English common law during the medieval period, particularly as feudal systems gave way to more formalized inheritance laws. By the 17th and 18th centuries, per stirpes and per capita became standard terms in English probate law, influencing legal traditions in the United States and other common law jurisdictions. Over time, their meanings evolved to fit modern estate planning practices, but their core principles remain tied to their Roman origins.

Modern Definitions in Estate Planning

In contemporary estate planning, per stirpes and per capita describe two distinct methods of distributing assets among beneficiaries, particularly when some beneficiaries are deceased.

• Per Stirpes: This method ensures that a deceased beneficiary’s share passes to their descendants. The estate is divided into equal shares at the first generational level (e.g., the testator’s children). If a beneficiary at that level is deceased, their share is divided equally among their own children (the testator’s grandchildren), and so on down the family line. This preserves the inheritance for that branch of the family, ensuring that the deceased beneficiary’s descendants receive what their parent would have inherited.

• Per Capita: Under this method, the estate is divided equally among all living beneficiaries at a specified generational level, typically the first generation (e.g., the testator’s children). If a beneficiary predeceases the testator, their share is redistributed equally among the surviving beneficiaries at that level, rather than passing to the deceased beneficiary’s descendants. There are variations, such as "per capita at each generation," where shares are recalculated at each generational level, but the traditional per capita approach focuses on equal distribution among living heirs.

These definitions are critical because they determine who inherits and how much, especially in complex family situations where beneficiaries may predecease the testator.

How Per Stirpes and Per Capita Are Used in Estate Planning

In estate planning, per stirpes and per capita are typically specified in wills or trusts to dictate how assets should be distributed if a beneficiary dies before the testator. These terms provide clarity and prevent disputes by establishing a clear framework for inheritance. Without such a designation, state laws (known as intestacy laws) may apply a default method, which might not align with the testator’s wishes.

For example, a will might state: "I leave my estate to my children, per stirpes." This ensures that if one of the children is deceased, their share goes to their own children (the testator’s grandchildren). Alternatively, the will might say: "I leave my estate to my children, per capita," meaning that only the living children inherit, and the share of a deceased child is split among the surviving siblings.

These terms are particularly important in larger families or when a trust spans multiple generations, such as in a dynasty trust. They also apply to specific bequests, such as life insurance policies or retirement accounts, where beneficiaries are named.

Examples Illustrating the Differences

To understand the practical impact of per stirpes versus per capita, consider the following scenario involving a testator, John, who has an estate worth $300,000 and three children: Alice, Bob, and Clara. John’s will specifies how the estate should be divided, but the outcomes differ depending on whether he chooses per stirpes or per capita.

Scenario 1: Per Stirpes Distribution

John’s will states: "I leave my estate to my children, per stirpes." At the time of John’s death, Alice is alive, Bob has passed away leaving two children (Bob’s kids, David and Emma), and Clara has passed away leaving one child (Clara’s daughter, Fiona).

• Step 1: The estate is divided into three equal shares at the first generational level (John’s children): $100,000 each for Alice, Bob, and Clara.

• Step 2: Alice is alive, so she receives her $100,000.

• Step 3: Bob is deceased, so his $100,000 share is divided equally among his children, David and Emma. Each receives $50,000.

• Step 4: Clara is deceased, so her $100,000 share goes to her daughter, Fiona, who receives the full $100,000.

Outcome:

• Alice: $100,000

• David (Bob’s son): $50,000

• Emma (Bob’s daughter): $50,000

• Fiona (Clara’s daughter): $100,000

In this per stirpes distribution, each family branch receives the share their parent would have inherited, preserving the inheritance for the descendants of Bob and Clara.

Scenario 2: Per Capita Distribution

Now, suppose John’s will states: "I leave my estate to my children, per capita." The family situation remains the same: Alice is alive, Bob has passed away with two children (David and Emma), and Clara has passed away with one child (Fiona).

• Step 1: The estate is divided equally among the living beneficiaries at the first generational level (John’s children). Since only Alice is alive, she is the only beneficiary at this level.

• Step 2: The entire $300,000 estate goes to Alice, and the descendants of Bob and Clara (David, Emma, and Fiona) receive nothing because their parents are deceased.

Outcome:

• Alice: $300,000

• David (Bob’s son): $0

• Emma (Bob’s daughter): $0

• Fiona (Clara’s daughter): $0

In this per capita distribution, only the living beneficiaries at the specified level inherit, which can result in a significant disparity, as Alice receives everything while Bob’s and Clara’s children are excluded.

Scenario 3: Per Capita at Each Generation (A Variation)

Some modern estate plans use a variation called "per capita at each generation." Using the same scenario, let’s see how this works:

• Step 1: The estate is divided equally among the living beneficiaries at the first generational level. Since Alice is the only living child, she receives $100,000 (one-third of the estate).

• Step 2: The remaining $200,000 (the shares of Bob and Clara) is pooled and divided equally among the next generation of living beneficiaries—David, Emma, and Fiona.

• Step 3: There are three grandchildren (David, Emma, and Fiona), so the $200,000 is divided equally among them: $66,666.67 each.

Outcome:

• Alice: $100,000

• David (Bob’s son): $66,666.67

• Emma (Bob’s daughter): $66,666.67

• Fiona (Clara’s daughter): $66,666.67

This variation ensures that the grandchildren share equally in the remaining estate, regardless of how many children each deceased beneficiary had.

Choosing Between Per Stirpes and Per Capita

The choice between per stirpes and per capita depends on the testator’s goals. Per stirpes is often preferred when the testator wants to ensure that each family branch is represented, even if a beneficiary predeceases them. It’s a way to honor the lineage and provide for grandchildren or further descendants. However, it can lead to unequal distributions among grandchildren if one family branch has more children than another.

Per capita (or its variations) may be chosen when the testator prioritizes equality among living beneficiaries or wants to simplify the distribution process. However, it can exclude descendants of deceased beneficiaries, which may not align with the testator’s intent to provide for future generations.

Conclusion

The terms per stirpes and per capita have deep historical roots in Roman law and continue to play a vital role in modern estate planning. Per stirpes ensures that a deceased beneficiary’s share passes to their descendants, preserving family branches, while per capita divides the estate equally among living beneficiaries, potentially excluding descendants of deceased heirs. Understanding these concepts allows individuals to make informed decisions when drafting their estate plans, ensuring their assets are distributed according to their wishes. By carefully choosing between per stirpes and per capita, and considering variations like per capita at each generation, testators can create a legacy that reflects their values and provides for their loved ones, even in the face of unexpected circumstances.

Schroeder Law Group serves clients from their Hillsboro Ohio offices located at 338 West Main Street Hillsboro, Ohio. Schroeder Law's attorneys help clients with estate planning. The information in this article is intended to educate you and does not create an attorney-client relationship. We are lawyers but not your attorney unless you schedule a strategy session and retain us using the link on this website or by calling (937) 402-2348.