Suppose that an intestate is survived by three children and no grandchildren. Who inherits the intestate’s net estate? How much does each person get? For most people, the answer is easy and obvious. Each child takes one-third of the intestate’s net estate.
Now suppose that an intestate is survived by two grandchildren who are children of the eldest child, who has not survived, and by the two younger children of the intestate. Who inherits the intestate’s net estate? How much does each person get? The answer is no longer easy and obvious.
One view is that because the eldest child has not survived, the two grandchildren should take nothing, and that the two younger children should each take one-half of the intestate’s net estate. Another view is that the two grandchildren should take by representation the one-third share of the intestate’s net estate that the eldest child would have taken if the eldest child had survived. Under this view, the two younger children should each take one-third of the intestate’s net estate, and the two grandchildren should each take one-sixth of the intestate’s net estate. The first view is an example of per capita. The second view is an example of per stirpes (pronounced: per-STIR-peas).
Per capita is a Latin phrase that means “by the heads” or equally. With per capita, property is divided in equal shares among those who are in an equal degree of consanguinity (relationship by blood) to the intestate. Originally, most descent and distribution was per capita.
Over time, many courts and legislatures have found that the result of per capita, in which orphaned children take nothing, too harsh. Those courts and legislatures have embraced per stirpes. Per stirpes is a Latin phrase that means “by roots or stocks” or by representation. With per stirpes, property is divided in equal shares among those who are in an equal degree of consanguinity to the intestate, with descendants of a deceased ancestor taking the ancestor’s share by representation, as if the ancestor had survived the intestate.
Per stirpes originally applied only to grandchildren taking a child’s share by representation. Today, many states apply per stirpes, however remote the nearest relative is to the intestate. The application of per stirpes to remote relatives is technically known as modified per stirpes.
How the Statute of Descent and Distribution is Interpreted in Your State
In some states, per capita applies in some circumstances and per stirpes applies in other circumstances. When an intestate dies, everything depends on the exact wording and interpretation of the statute of descent and distribution in your state. Your lawyer can advise you. Furthermore, when making a gift to a class of persons in a will or other estate plan, it is a good idea, for the sake of clarity, to specify whether you intend per capita or per stirpes.