Intestate Distribution to Issue: Per Stirpes, Per Capita with Representation, and Per Capita at Each Generation

Key Background Facts:

Key Facts:

When a decedent leaves no will, his property is distributed according to the state's intestacy law. The laws of intestacy vary greatly among the states. The applicable state law would be for the state in which the decedent was last domiciled. If the decedent had real property in other states, then the laws in those states would be controlling for the intestate distribution of that property.

The general rationale to most of these laws is that the closer the relationship, the more likely they will take. The surviving spouse generally receives the major portion or all the property. If there is no surviving spouse, then the property goes to the issue of the decedent and if there is no issue, then to ascendants or issue of ascendants of the decedent. The ascendants that are usually still alive are usually the parents and the issue of the parents, which would be the decedent's brothers and sisters and any of their descendants.

Other than the surviving spouse, the remaining relatives are grouped in tiers of equal relationship to the decedent who have either survived the decedent or have surviving issue.

descendants are always first in line to receive before any ascendants or their issue, so if there are any descendants, then the ascendants get nothing.

Share of the Surviving Spouse

Generally, a spouse has a duty to care for the other spouse. Hence, under most intestacy laws, the spouse receives most or all the predeceased spouse's share of the property, especially if the estate is small. This is true even if the couple has children. The rationale for this distribution is that since the children are children of both parents, the surviving spouse will do what's in the best interest of the children, and that the last spouse will provide for all their children after her death or they will inherit under intestacy. Under the Uniform Probate Code (UPC §§2-102 to 2-105), the surviving spouse generally receives even more than she would under the laws of most states.

However, if the decedent had surviving issue who is not also issue of the surviving spouse, then the surviving issue will usually receive some property, so that the surviving spouse cannot favor her own offspring at the expense of the predeceased spouse's other issue.

How Shares are Determined Within a Tier or Generation

What property remains after the share of the surviving spouse, or if there is no surviving spouse, is distributed to the nearest tier where there is a live taker.

Most laws attempt to distribute the property equally within a tier. However, there are 3 different methods of distributing property beyond the surviving spouse: per stirpes, per capita with representation, and per capita at each generation.

Generally, the remaining estate is divided by the number of lines of descent that take, whether it is a member or his issue that takes. However, when someone in a given line of descent takes, then no one below in that same bloodline takes. So if someone takes, then nothing goes to their children or grandchildren.

These intestate distribution schemes are based on 3 factors:

  1. At which tier are the members counted by which the estate will be divided.
  2. After the estate is divided, then under all 3 schemes, one share is allotted to each living member or to the issue of the dead members.
  3. How the shares drop to the issue of deceased members.

Strict Per Stirpes Distribution

Under the per stirpes distribution (aka strict per stirpes, also called English per stirpes because it was derived from old English law), the estate is divided by the number of members of the 1st generation, who are either alive or are survived by issue. Each member who is alive takes that share, and the shares of the deceased members drop to the next generation. This process is repeated for that generation. The share that drops is divided by the number of members in that bloodline who are either alive or are survived by issue. This process continues until all the share is taken.

Per Capita with Representation

The per capita with representation (aka modern per stirpes, American per stirpes) works exactly like the strict per stirpes approach, except that the estate is divided equally at the tier that has a live taker. The estate is then divided by the number of lines of descent at that tier. The deceased members of that tier are represented by their surviving issue, hence, the name "with representation."

Per Capita at Each Generation

A major drawback to the per stirpes and the per capita with representation distributions is that descendants equally related to the decedent may take unequal shares of the estate. The per capita at each generation distribution allows each member of a generation who takes to receive the same amount by pooling whatever drops to a lower generation, then dividing the pool among members of the same generation who are either alive or have surviving issue. The process is repeated if necessary until the entire estate is distributed.

Summary of Intestate Distribution to Issue
Per Stirpes Per Capita
with Representation
Per Capita
at Each Generation
Generation Where
Estate is 1st Divided
1st 1st with a living member
How Shares
Are Dropped
By bloodline By pooling
Shares are always divided at each generation by the number of members who are either alive or survived by issue.

Examples of Intestate Distribution to Issue: Strict Per Stirpes, Per Capita with Representation, and Per Capita at Each Generation

The decedent dies with no surviving spouse, leaving an estate valued, after expenses and taxes, at $120,000. Her descendants are illustrated with the following diagram, with deceased descendants in blue and surviving descendants in red:

Diagram illustrating intestate distribution.