Per Stirpes vs. Per Capita: What the Difference Means for Your Family
Beneficiaries · 6 min read · Updated September 16, 2026
“Per stirpes” and “per capita” describe what happens to a beneficiary’s share if that beneficiary dies before the person who made the will. Under per stirpes, the deceased beneficiary’s share passes down to their own children. Under per capita, the share is instead divided among the surviving beneficiaries at the same level. The choice matters most for families with grandchildren, and it is one of the most misunderstood settings in any will.
The problem these terms solve
A will that says “I leave my estate to my three children equally” is clear as long as all three children are alive. But what if one of them dies first? There are two reasonable answers:
- The deceased child’s share should go to that child’s own children (the testator’s grandchildren), so that branch of the family is not cut off.
- The deceased child’s share should go to the two surviving children, since the gift was to the children.
Per stirpes chooses the first answer. Per capita chooses the second. Without a clear instruction, state law supplies a default, and the default is not the same in every state.
Per stirpes, explained
“Per stirpes” is Latin for “by the branch” or “by the root.” Each child of the testator heads a branch of the family tree. If a child dies before the testator, that child’s branch still receives the branch’s share, divided equally among the deceased child’s children (and so on down the line if a grandchild has also died).
Example. Maria has three children: Ana, Ben, and Carla. Her will leaves everything to her children, per stirpes. Ben dies before Maria, leaving two children of his own.
- Ana receives one-third.
- Carla receives one-third.
- Ben’s one-third is split between Ben’s two children, one-sixth each.
If Ben had died with no children, his branch would be empty and his share would go to Ana and Carla, one-half each.
The appeal of per stirpes is that it treats each branch of the family equally. Grandchildren whose parent died are not disinherited by an accident of timing. It is by far the more common choice in wills, and it is the default in most states when a will is silent.
Per capita, explained
“Per capita” means “by the head.” Every living beneficiary in the named group receives an equal share, and the descendants of a deceased beneficiary receive nothing under that gift.
Example. Same family. Maria’s will leaves everything to her children, per capita. Ben dies before Maria.
- Ana receives one-half.
- Carla receives one-half.
- Ben’s children receive nothing.
Some people choose this deliberately. Perhaps Maria provided for Ben’s children separately, or she is closer to her surviving children, or she simply wants to keep the estate at one generation. It is a legitimate choice, but it is important to understand that it cuts off grandchildren in the deceased child’s line unless they are named elsewhere in the will.
The hybrid: per capita at each generation
A third approach, sometimes called “per capita with representation” or “per capita at each generation,” is the default under the Uniform Probate Code, which a number of states follow. It works like per stirpes at the first generation but pools the shares of deceased beneficiaries and divides them equally among everyone at the next generation.
Example. Maria’s three children Ana, Ben, and Carla. Ben and Carla both die before Maria. Ben leaves one child; Carla leaves three.
- Ana receives one-third.
- Under strict per stirpes: Ben’s one child gets one-third; Carla’s three children get one-ninth each.
- Under per capita at each generation: the two deceased children’s shares (two-thirds total) are pooled and divided equally among all four grandchildren, one-sixth each.
The hybrid approach appeals to people who think all grandchildren should be treated the same regardless of how many siblings they have. Strict per stirpes appeals to people who think each branch should get the same amount. Neither is wrong; they reflect different views of fairness.
Why the state default is not enough
If a will leaves property “to my descendants” without saying which method applies, the state’s anti-lapse and representation statutes decide. Those statutes vary, and they may not match what the testator would have chosen. Worse, some anti-lapse statutes apply only to gifts to certain relatives, so a gift to a friend who dies first may simply fail and fall into the residuary estate or, if there is no residuary clause, into intestacy.
Spelling out the method in the will removes that uncertainty. The questionnaire on this site asks for a choice when the residuary estate is left to children or to named beneficiaries, and explains the options at that step.
Alternates versus representation
Per stirpes and per capita govern what happens automatically when a beneficiary dies first. They are different from naming an alternate beneficiary, which is an explicit instruction: “to my sister, but if she does not survive me, to my nephew.” Alternates are useful for specific gifts and for beneficiaries who are not descendants. Representation language is useful for the residuary estate, where the goal is to keep shares flowing down family lines without listing every possible grandchild.
Many wills use both: alternates for specific gifts, per stirpes for the residue.
Survivorship periods
Related to all of this is the survivorship clause, which requires a beneficiary to outlive the testator by a set period, commonly 30 days, to inherit. Without one, if a parent and child die in the same accident hours apart, the child could technically inherit and the property would then pass through the child’s estate, adding a second probate and possibly sending assets to people the parent never intended. A survivorship period treats a beneficiary who dies within the window as having died first, so the per stirpes or alternate instructions apply. The questionnaire includes a default 30-day survivorship period.
Beneficiary designations use these terms too
Retirement plan and life insurance beneficiary forms often offer a per stirpes checkbox. If the form is left at its default, which is usually per capita among the named beneficiaries, a deceased child’s share may go to their siblings rather than their children, regardless of what the will says. Since those accounts pass outside the will, the form controls. See Does a Beneficiary Designation Override a Will?.
Frequently asked questions
Which is more common, per stirpes or per capita?
Per stirpes is far more common in wills, and it is the default in most states when the will does not specify. It keeps a deceased beneficiary’s share within that person’s branch of the family.
What happens if a beneficiary dies and the will says nothing?
State law fills the gap through anti-lapse and representation statutes. The result depends on the state and on the beneficiary’s relationship to the testator. For non-relatives, the gift may fail entirely and fall into the residuary estate. Stating the method in the will avoids relying on defaults.
Does per stirpes apply to a spouse?
No. Per stirpes and per capita describe distribution among descendants. A gift to a spouse either passes to the spouse or, if the spouse dies first, goes to whatever alternate the will names.
Can a will use per stirpes for some gifts and per capita for others?
Yes. A will can specify a method for each gift. Many wills name explicit alternates for specific gifts and use per stirpes for the residuary estate.
Ready to make your will?
The questionnaire at /start explains the per stirpes and per capita choice in plain English at the residuary step and includes a survivorship period by default. Anti-lapse rules and signing requirements differ from state to state; see the guide for a specific state at /wills/, and have the finished will reviewed by a licensed attorney before signing.
This article is general information, not legal advice. Laws vary by state and change. Confirm anything that matters to you with a licensed attorney in your state.