Per Stirpes - Per Capita at Each Generation

Per capita at each generation is an alternative way of distribution, where heirs of the same generation will each receive the same amount. The estate is divided into equal shares at the generation closest to the deceased with surviving heirs. The number of shares is equal to the number of original members either surviving or with surviving descendants. Each surviving heir of that generation gets a share. The remainder is then equally divided among the next-generation descendants of the deceased descendants in the same manner.

Example 2A: In the first example, children C and D survive, so the estate is divided at their generation. There were three children, so each surviving child receives one-third. The remainder - B's share - is then divided in the same manner among B's surviving descendants. The result is the same as under per stirpes because B's one-third is distributed to B1 and B2 (one-sixth to each).

Example 2A: The per capita and per stirpes results would differ if D also pre-deceased with one child, D1 (figure 2). Under per stirpes, B1 and B2 would each receive one-sixth (half of B's one-third share), and D1 would receive one-third (all of D's one-third share). Under per capita, the two-thirds remaining after C's one-third share was taken would be divided equally among all three children of B and D. Each would receive two-ninths: B1, B2, and D1 would all receive two-ninths.

Notes:

• To give the effect indicated in these examples the clause should also include a provision that no beneficiary being a grandchild or remoter descendant will take a share if his or her parent is alive and takes a share.
• The spouses of the children (that is, spouses of B, C, and D) are not considered. Spouses are not a part of the branch. Therefore, even if B, C, or D died leaving a spouse as well as children, all (100%) of the assets pass to the children and (0%) nothing passes to the spouses of A's children B, C, and D. From the example above, if A's child B died before A's death, A's grandchildren B1 and B2 would each receive half of B's share. Even if B had a living spouse at the time of A's death, that person would receive nothing from A's estate.