A client recently came to my office with her late mother’s will, drafted from an online template nearly twenty years ago. The mother, a wonderful matriarch from Brooklyn, had three children. Her will left her entire estate “to my beloved children, in equal shares, per capita.” The problem? One of her sons had passed away a few years before she did, leaving two children of his own. The surviving two children believed they should now split the estate 50/50. The grandchildren, however, expected to receive their late father’s one-third share. Who was right?
The answer lies in those two Latin words—per capita. In the stewardship of a family’s legacy, language is everything. A single phrase can redirect the flow of generational assets, often in ways the person signing the will never intended. This is one of the most common and heartbreaking issues we see in Surrogate’s Court—a will that seems fair on the surface but creates profound inequality in practice.
“Per Capita” vs. “Per Stirpes”: Two Futures for Your Family
Distribution methods are not legal jargon—they are instructions that determine who inherits and who is left out. The distinction between “per capita” and “per stirpes” is the clearest example of this.
Per Capita means “by the head.” When a will directs a per capita distribution to a group of people, like “my children,” the estate is divided equally among the living members of that group. If a member of the group has predeceased the testator (the person who made the will), their share is not passed down to their own children. Instead, it is absorbed back into the estate and divided among the surviving members. In the case of the Brooklyn family, a strict per capita distribution gives 50% of the estate to each of the two living children. The two grandchildren of the deceased son receive nothing.
Per Stirpes means “by the root” or “by representation.” This is the method most people assume is standard. Under a per stirpes distribution, each branch of the family receives an equal share. If a child predeceases the parent, that child’s designated share flows down to their own children. In our example, a per stirpes clause would have directed one-third of the estate to each of the two living children, and the final one-third would have been split between the two grandchildren. Each grandchild would have received one-sixth of the total estate—their father’s share, preserved.
Most clients I work with, when the differences are explained, realize they want a per stirpes distribution for their children and grandchildren. They want their legacy to honor each branch of their family tree equally. The tragedy is that without proper counsel, many select “per capita” thinking it simply means “equal,” not understanding its power to disinherit.
How New York Law Interprets Vague Wills
What happens when a will is silent or ambiguous on the method of distribution? New York has default rules to guide the courts. The law presumes a testator does not want to accidentally disinherit a line of descendants.
New York’s Estates, Powers and Trusts Law (EPTL) § 3-3.3, the “anti-lapse” statute, is designed to prevent a gift to a sibling or a child from failing if that person dies before the testator. The law provides that the gift will instead pass to the deceased beneficiary’s own issue. This statute creates a default per stirpes-style distribution for certain close relatives when the will does not specify otherwise.
However—and this is critical—the specific language in your will can override this legal default. If you deliberately write “per capita,” you are instructing the executor to ignore the anti-lapse statute. You are making an intentional choice to divide the assets only among the named beneficiaries who survive you. The court’s job is to follow the instructions in the will, even if the outcome seems harsh. Professional guidance is not a luxury; it is a necessary safeguard to ensure your words achieve your true intent.
When Is Per Capita the Deliberate Choice?
While per stirpes is more common for multi-generational planning, a per capita distribution can be a useful and fair tool in other situations. The choice must be deliberate.
Consider a woman with no children who is very close to her six nieces and nephews. Her two siblings had a different number of children—one had two, and the other had four. If she left her estate to her nieces and nephews “per stirpes,” the two children of the first sibling would split 50% of the estate, while the four children of the second sibling would split the other 50%. The result would be unequal individual shares.
If her intention is to treat every one of her nieces and nephews as individuals, without regard to their parentage, then a “per capita” distribution is the correct choice. This would give each of the six an equal one-sixth share of the estate. The decision must be made with a full understanding of the consequences. Stewardship is intentional.
The words you choose in your will are your final instructions. They carry the weight of your legacy and have the power to provide for, unite, or divide the family you leave behind. A term like “per capita” is a tool. Like any tool, it can build or it can break, depending entirely on the skill and knowledge of the person who wields it.
If your will is more than a few years old or was prepared without a dedicated estate planning attorney, the language may not reflect your current wishes or family structure. We can provide a beneficiary designation review to analyze the distributive provisions in your existing documents and confirm they align with your true intentions for the next generation.
