Estate planners commonly use the Latin term, “per stirpes”, when drafting wills, but most lay people have no idea what the term even means. This arcane term differs from the less commonly used, but still present, Latin term, “per capita”.  It is important to understand the difference between these two terms in order to draft a will in accordance with a testator’s intention, as well as be able to explain to your client what they mean.

Per stirpes translates to “by representation”. Where beneficiaries are to share in an estate “per stirpes”, then the living member in the class of beneficiaries who is closest in relationship to the testator will receive an equal share (for example, children of the testator).  If a member of the class of beneficiaries who is closest in relationship to the testator (for example, a child of the testator) has predeceased the testator and is survived by any descendants, then his or her share is divided among his or her descendants who are alive at the testator’s death.

The use of per stirpes preserves the equality of distribution of an estate down the lines of descent from the testator. Each generational line of descent from the testator receives an equal share of the estate regardless of who is alive within that line.

Per capita translates to “by head”. Where beneficiaries are to share in an estate “per capita”, then all of the living members of the class of beneficiaries will receive an equal share.  If a member of the class of beneficiaries has predeceased the testator, then a share does not get created for him or her; but rather, all of the shares of the other members of the class will be increased accordingly.

The difference between the two terms is best illustrated by an example.

Assume the following:

• X has 3 children, A, B and C.
• A has 2 children, Y and Z.
• B and C have no children.

Per Stirpes:

X’s will provides for a distribution of X’s estate among her children who are alive at the time of her death in equal shares, and if a child has predeceased X leaving issue surviving, then such deceased child’s share gets divided equally among his or her issue in equal parts per stirpes.

Scenario 1: X dies and A, B, C, Y and Z are all alive at the time of X’s death.

Each of A, B and C receive 1/3 of X’s estate on X’s death. Y and Z receive nothing.

Scenario 2: X dies and A has predeceased X, leaving Y and Z alive at the time of X’s death, and B and C are alive.

The estate is still divided into thirds. B and C will each receive 1/3 of X’s estate.             Y and Z will each receive 1/6 of X’s estate (the 1/3 share of the estate that would        have gone to A if A was alive at the time of X’s death is divided equally between Y and Z).

Per Capita:

X’s will provides for a distribution of X’s estate among her issue alive at the time of her death in equal shares per capita.

Scenario 1: X dies and A, B, C, Y and Z are alive at the time of X’s death.

Each of A, B, C, Y and Z receive 1/5 of X’s estate on X’s death.

Scenario 2: X dies and A has predeceased X, leaving Y and Z alive at the time of X’s death, and B and C are alive.

Each of B, C, Y and Z receive 1/4 of X’s estate on X’s death.

As shown in the example, the results from a per stirpes distribution and a per capita distribution differ. Accordingly, it is important that the will drafter understands the testator’s intention in order to draft the will to obtain the appropriate result.