Per stirpes vs. per capita in a will: What’s the difference?

If you’ve ever looked at will documents, you may have come across legal terms that seem to be written in another language. And in the case of “per stirpes” and “per capita,” you’d be correct! They’re both Latin terms that, despite their confusing names, serve an important purpose in your last will and testament.

As you may know, you can use your will to explain who should receive your property after you pass away. The people you name in your will to receive your property are called your beneficiaries. It’s important to name beneficiaries for your estate, as well as contingent beneficiaries. These “backup beneficiaries” are next in line to receive assets if your primary beneficiaries aren’t able to.

That’s where per stirpes and per capita come in. Per stirpes and per capita are legal terms you can use in your will as a way to name contingent beneficiaries. Specifically, these terms explain who should inherit your assets if one of your beneficiaries passes away before you. Per stirpes and per capita perform a similar function but have different outcomes for your beneficiaries.

What is a “per stirpes” distribution in a will?

In Latin, per stirpes roughly translates to “by branch.” Under a per stirpes distribution, if one of your beneficiaries dies before you, their share of your estate will pass to their descendants (like children or grandchildren) so that each branch of the family receives the same portion of the total assets.

Some forms use the phrase “by right of representation” instead of per stirpes. They mean the same thing and can be used interchangeably. At FreeWill, we use the language “by right of representation” in our will forms.

You can learn more about per stirpes in our in-depth guide to per stirpes distributions.

What is a “per capita” distribution in a will?

In Latin, per capita translates to “by head.” Under the standard per capita distribution, all beneficiaries in the same generation or class receive the same portion of the total assets. There are several different ways to write a per capita distribution into your will, but two of the most common are “to my children, per capita” and “to my descendants, per capita.”

To my children, per capita

If you write “to my children, per capita” in your will, your estate will be split equally among only your living children. If one of your children dies before you, then your estate is distributed only to your remaining living children. In this situation, your children’s descendants — for example, your grandchildren — won’t receive any of their parent’s intended inheritance.

To my descendants, per capita

If you write “to my descendants, per capita” in your will, your estate will be split among a larger group that includes all of your living descendants. This includes your children, grandchildren, great-grandchildren, and so on.

Per stirpes vs. per capita example

We’ll illustrate the difference between per stirpes and per capita with an example. Say you have three children: Alan, Beth, and Claude. In your will, you write that you want your estate split equally among them. Beth and Claude survive you. But Alan passes away before you, leaving behind two children of his own.

If you use a per stirpes distribution in this scenario:

• Alan’s children will inherit Alan’s one-third portion of your estate in equal shares — so they’ll each receive one-sixth of your estate.
• Beth and Claude will receive their original one-third of your estate. Even if Beth and Claude have children, those children won’t receive any inheritance when you pass away.

If you use “to my children, per capita” in this scenario:

• Your estate will be divided only between your two living children. Since Alan passed away before you, Beth and Claude will each receive one-half of your estate.
• Under this per capita distribution, Alan’s children won’t receive any of Alan’s intended inheritance.

If you use “to my descendants, per capita” in this scenario:

• Your estate will be divided evenly among all your living beneficiaries. You have four living beneficiaries: Beth, Claude, and Alan’s two children.
• Since Alan passed away before you, his intended share will be equally split among your four remaining beneficiaries. As a result, all four of your beneficiaries will receive an equal one-fourth share of your estate.

Bottom line: What’s the difference between per stirpes and per capita?

Both per stirpes and per capita are used to name contingent beneficiaries in your will, but they have different outcomes.

Under a per stirpes (“by branch”) distribution, if one of your beneficiaries dies before you do, their inheritance will go to their descendants. In other words, the inheritance will pass down the branches of your beneficiary’s family tree.

Under a per capita (“by head”) distribution, the inheritance is distributed among all the heads of your beneficiaries within the same class. You can use “to my children, per capita” to split your estate equally among only your living children. Or, you can use “to my descendants, per capita” to split your estate among a larger group that includes all of your living descendants — including children, grandchildren, and great-grandchildren.

Understanding the difference between these two terms can be tricky, but it helps ensure you document your wishes accurately in your will. And fortunately, you don’t have to master complicated Latin terms to write your will.

You can use FreeWill’s online will-maker to create your will in 20 minutes. First, fill out a simple questionnaire and list who you want to receive each of your assets. We’ll provide the appropriate legal language for you — resulting in a personal will document that reflects your wishes. And best of all, it’s completely free!