A Brooklyn matriarch I represented faced a difficult question. She had three adult children. Two were thriving, with one child each. Her third child had tragically passed away years earlier, leaving two young children behind. Her question to me was simple: “When I’m gone, what is fair?”
Does fairness mean dividing her estate into three equal parts, one for each of her children’s family lines? Or does it mean dividing it equally among her four grandchildren? This is not just a question of feeling—it is a question of legal structure. The language in your will or trust dictates the outcome. The choice between two legal concepts, per stirpes and per capita, can dramatically alter who receives what.
The Default Approach: Distribution Per Stirpes
The traditional method for inheritance is per stirpes, a Latin term meaning “by the branch” or “by the root.” When we structure a will this way, we treat each primary branch of the family tree as a single entity. Using our Brooklyn family as the example, a per stirpes distribution works like this:
The estate is first divided into three equal shares, one for each of her children.
- Her two living children each receive their one-third share directly.
- The one-third share that would have gone to her deceased child is then divided equally among that child’s own heirs—in this case, her two grandchildren. They would each receive one-sixth of the total estate.
This method honors the generational line. The grandchildren of the predeceased child inherit, but only the portion their parent would have received. It ensures that no single family branch is penalized or disproportionately rewarded based on how many children it contains. It is a model of generational stewardship.
This logic is reflected in New York law. EPTL § 2-1.2 establishes a default: when a will leaves assets to a person’s “issue,” they take per stirpes if they are of unequal generations, unless the will explicitly states otherwise. The law presumes you intend to honor the family branch.
An Intentional Alternative: Distribution Per Capita
An alternative is to distribute assets per capita, meaning “by the head.” This method disregards family branches and divides the estate equally among a specified group of individuals. The outcome can be profoundly different.
If our matriarch specified a per capita distribution to her grandchildren, the calculation would change entirely. Instead of dividing the estate by three, we would count the total number of heads in the designated class of beneficiaries—her four grandchildren. Each grandchild would receive an equal one-quarter share of the estate.
The reasons for this are always personal. Perhaps the grandmother was equally involved in raising all four grandchildren and sees them as individuals, not as extensions of her children. Perhaps one of her children has a large family, and she wants to ensure each of those grandchildren receives a meaningful inheritance, not a sliver of their parent’s share.
Choosing per capita is a deliberate act. It says that the legacy is not meant to flow down rigid family lines, but to be distributed equally among a chosen generation. It prioritizes the individual beneficiary over the ancestral branch. There is no right or wrong answer—only the one that aligns with your intent.
The Fiduciary’s Duty: Executing Your Precise Instructions
My role as an attorney is to ensure the legal documents we create are an exact reflection of a client’s wishes. The distinction between these two methods is a perfect example of why precision matters. A poorly drafted will might use ambiguous language like “to be divided equally among my descendants,” which can lead to confusion and conflict in Surrogate’s Court.
Does that phrase mean per stirpes or per capita? Without specific clarifying language, an executor or trustee—the fiduciary responsible for carrying out your wishes—may be forced to seek court guidance. This process costs time and money, and it can create lasting friction within a family.
Prudent estate planning removes that ambiguity. We work with clients to talk through these scenarios, helping them understand how their choices will play out for the people they care about most. Our job is to translate your definition of “fair” into clear, legally binding instructions that a fiduciary can execute without question.
Your will is more than a financial document. It is the final set of instructions for the stewardship of your life’s work. The language it contains should be as intentional as the legacy you built.
If you are unsure how your current will or trust directs the distribution of your assets, it may be time for a review. We can schedule a meeting to examine the specific dispositive language in your documents and confirm it achieves the outcome you intend for your family.
