Two Latin phrases buried in the middle of a will can completely change how much money a grandchild receives. Per stirpes and per capita both describe how a deceased beneficiary's share passes down to the next generation, but they divide that share in fundamentally different ways. Testators rarely notice the distinction until a lawyer walks them through an example with real numbers.
How Per Stirpes Divides a Share
Per stirpes (EPTL 1-2.14) divides the estate at each branch of the family tree and preserves each branch's share; in New York, "by representation" is a different, per-capita-at-each-generation method (EPTL 1-2.16). If a testator leaves an estate to three children per stirpes and one child has already died leaving two children of their own, that deceased child's one-third share splits evenly between those two grandchildren, each receiving one-sixth. The surviving children still each receive their full one-third. A will's chosen method controls over the statutory default when it is stated clearly.
How Per Capita Wording Changes the Result
Per capita distribution instead treats all beneficiaries at the generation actually receiving the gift as equals, dividing the estate evenly among everyone alive who qualifies, regardless of which branch they descend from. Using the same family, if the estate passes per capita to descendants living at the testator's death, the two grandchildren of the deceased child and the two surviving children would each receive one-fourth, changing the surviving children's shares significantly compared to the per stirpes result.
- Per stirpes preserves each branch's original share, then subdivides only within that branch
- Per capita spreads the gift evenly among everyone in the qualifying generation
- New York's statutory default, "by representation" under EPTL 1-2.16, is a per-capita-at-each-generation method that differs from both strict per stirpes and pure per capita
- The default rule applies only if the will is silent or ambiguous on the method
- Testators with unequal numbers of grandchildren per child should model both outcomes before choosing
Why the Choice Deserves a Real Conversation
Many testators assume "equally to my descendants" means the same thing under every method, and are surprised to learn it does not. A careful drafting session walks through the family tree as it exists today and as it may look after a future death, so the client can choose language that reflects their actual intent rather than a default rule they never considered. This is a routine part of our will drafting process.
If your will refers to descendants, grandchildren, or issue without specifying how shares divide, it may not say what you think it says. Call Schwartsman Law Group at +1 212 518 3868 or schedule a free consultation to review the language with an attorney.
