Imagine a family matriarch in Brooklyn. She has three adult children and plans to leave them her brownstone and savings in equal shares. For decades, her will reflected this simple wish. But life brings contingencies. Years later, one of her sons passes away unexpectedly, leaving behind two young children of his own. Now, her original plan faces a critical question: when she passes, what happens to the one-third share intended for her deceased son?
Does that share go to his children, her grandchildren? Or is it divided between her two surviving children, leaving the grandchildren with nothing? The answer depends on two Latin words that carry immense weight in estate planning: per stirpes and per capita.
Distribution “By the Branch”—Per Stirpes
Per stirpes—Latin for “by the branch”—is a method of distributing an estate that honors the generational lines of a family. In our Brooklyn matriarch’s case, a per stirpes distribution would treat each of her three children’s families as a distinct branch of the family tree.
Her estate would first be divided into three equal shares, one for each branch.
- Her first surviving child receives their one-third share.
- Her second surviving child receives their one-third share.
- The one-third share intended for her deceased son “drops down” to his children, who then split it equally. His two children would each inherit one-sixth of the total estate.
This approach is often favored by clients who want to ensure that each line of their family is treated equally. Grandchildren step into their parent’s shoes to receive the inheritance that would have been theirs. It protects a generational legacy. Stewardship.
Distribution “By the Head”—Per Capita
The alternative is per capita, or “by the head.” This method disregards family branches and instead divides the estate equally among the living individuals of a specific generation. The outcome here can be dramatically different.
If the matriarch’s will specified a per capita distribution to her children, the law looks only at the members of that class—her children—who are alive at the time of her death. In this scenario, her two surviving children would each receive one-half of the estate. The share of the deceased son simply vanishes, and his children receive nothing from her will.
A modern variation is “per capita at each generation.” Here, the shares of any deceased members of a generation are combined and then distributed equally among the next generation. In our example, the result is the same as per stirpes. If two of her three children had passed, however, the results would diverge significantly. This model treats all grandchildren equally, regardless of which family branch they belong to.
New York Law and Your Intent
Choosing between these frameworks is a profound decision about what fairness means to your family. There is no universally “correct” answer, only the one that aligns with your intent. The danger lies in ambiguity. A poorly drafted will that fails to specify the method can lead to confusion and disputes among grieving family members—disputes that end up in Surrogate’s Court.
New York has a default rule for ambiguity. Under Estates, Powers and Trusts Law (EPTL) § 2-1.2, if a will or trust does not specify the method, distributions are made by representation. This functions as “per capita at each generation”—the shares of the deceased are pooled and divided equally among the next generation. While this statute provides a backstop, relying on a default is never prudent. Your will is your final word. It should be deliberate and unambiguous, leaving no room for a court to interpret your intentions.
This single choice reflects a core philosophy of your legacy. Is your primary duty to your children as individuals, or is it to the family lines that descend from them? Answering that question is the first step toward intentional planning.
If you are unsure how your current will or trust handles this contingency, the language deserves a second look. We can review the specific distributional clauses in your documents to ensure they accurately reflect your wishes and protect the legacy you intend to leave.
