A client came to my Manhattan office a few years ago with a simple question that held the weight of his entire legacy. He had three adult children and a straightforward will: “I give my estate in equal shares to my children who survive me.” The problem? One of his sons, a father of two, had recently passed away in a car accident.
As written, his will would disinherit his two young grandchildren. The two surviving children would split the entire estate, and their deceased brother’s family would receive nothing. This was the opposite of his intention, but it was what the words on the page directed. He believed “equal shares” was fair, but he never considered the brutal contingency of a child predeceasing him. This is where a single legal phrase—chosen decades earlier—can change the course of a family’s future.
The choice is almost always between two concepts: per stirpes and per capita. Understanding them is not a matter of legal trivia; it is an act of stewardship.
Per Stirpes: Distribution by Family Branch
Per stirpes is a Latin term that means “by the roots” or “by the branch.” It’s a method of distributing an estate that honors the generational lines of a family. When you designate a distribution to your children per stirpes, you are not just naming individuals—you are naming their entire branch of the family tree.
Let’s return to my client’s situation. If his will had said, “I give my estate to my children, per stirpes,” the outcome would have been entirely different. The estate would first be divided into three equal shares, one for each child.
- His two living children would each receive their one-third share directly.
- The one-third share designated for his deceased son would not vanish. Instead, it would pass down to his son’s own children—the client’s grandchildren—who would share it equally.
In our practice, we see clients choose this option when their primary goal is to treat each of their children’s families as a unit. They want to ensure that the portion of the legacy they intended for a child will support that child’s descendants, even in the face of tragedy. It is a deliberate act of providing for the next generation down a specific family line, recognizing that a child’s own family depends on that inheritance.
Per Capita: Distribution by the Head
The alternative is per capita, meaning “by the head.” This method distributes assets equally among all living beneficiaries of the same generation or group. It disregards family branches and simply counts the number of heads.
In my client’s original will, the phrase “to my children who survive me” created a per capita distribution at the level of his children. With one son deceased, there were only two surviving heads, so the estate was split in two. The grandchildren were in a different generation and were not named, so they were left out. This is often the default, and it can be devastating.
A variation on this is called per capita by representation. This is the default rule in New York under Estates, Powers and Trusts Law (EPTL) § 3-3.3 if a will leaves assets to a group of descendants or siblings but is silent on what to do if one of them predeceases the testator. Under this rule, the estate is first divided at the nearest generation with living members. The shares of any deceased members of that generation are then combined and distributed equally among their descendants. It can produce a more equitable result than a strict per capita distribution, but it can also yield outcomes a client might not expect.
Relying on a legal default is rarely a prudent strategy. Your will should be an instrument of your specific intent, not a document that requires a Surrogate’s Court judge to apply a statutory fallback plan.
Making a Deliberate Choice
There is no single right choice—only the one that aligns with your values and family structure. I have worked with families for whom each path made perfect sense.
A client might choose a per stirpes distribution if:
- They have children with vastly different family sizes and want to ensure each child’s family unit receives an equal share of the total estate.
- They feel a strong fiduciary duty to provide for their grandchildren through their parents’ line.
- Their primary goal is generational continuity.
Conversely, a client might structure their estate plan for a per capita distribution at the grandchildren’s level if:
- They want to treat every grandchild equally, regardless of which child is their parent.
- One of their children has no descendants, and they do not want that child’s “share” to be reallocated in a way that feels unfair to the other branches.
This decision is not limited to your will. It affects trusts and, critically, the beneficiary designation forms for your life insurance and retirement accounts. These forms are contracts that often override the terms of a will. An outdated 401(k) beneficiary form can undo even the most carefully drafted estate plan.
The language is everything. “Share and share alike” is not enough. Your documents must be precise about the contingencies. Without that precision, you leave the interpretation—and your family’s future—in the hands of others.
Our work is to translate a client’s intentions into legally durable language that survives them. The goal is to ensure the legacy you plan is the one your family receives—without ambiguity or the intervention of a court.
The first step is to understand what your current documents say. If you have an existing will, trust, or retirement account, pull it out and find the distribution language. If it’s unclear how your assets would be divided in a scenario like the one my client faced, it’s time to seek clarity. You can schedule a review with our firm to analyze your beneficiary designations and confirm they reflect your true intentions.
