Per Stirpes vs. Per Capita: The Three-Outcome Problem (2026)
Per stirpes keeps assets within each family branch; per capita splits them equally among living heirs. But a hidden third system changes everything — here's exactly how.
What Is the Difference Between Per Stirpes and Per Capita?
Per stirpes ("by branch") and per capita ("by head") are two instructions for what happens to a deceased beneficiary's inheritance share. Under per stirpes, that share flows down to the deceased beneficiary's own children. Under per capita, that share is redistributed equally among the surviving members of the named class — typically your surviving children — leaving the deceased beneficiary's children with nothing.
Key takeaways
- Per stirpes preserves each family branch's share; per capita concentrates assets among whoever is still living.
- A third system — per capita at each generation, codified in Uniform Probate Code § 2-106 — exists and is the intestacy default in roughly 18 states.
- The phrase "by representation" is legally dangerous: it triggers per stirpes in some states and something different in others.
- IRA and 401(k) beneficiary designations supersede your will entirely; you must add per stirpes language separately to every financial account.
- Charles Schwab's IRA default is per capita — meaning grandchildren are silently excluded unless you opt in to per stirpes.
There Are Actually Three Systems, Not Two
Every article on this topic presents a binary: per stirpes or per capita. That framing misses a third system that affects millions of wills, trusts, and retirement accounts across the country.
Strict per stirpes always anchors the initial share count at the children's generation — even if every child has already died. Each child's line represents a branch, and that branch's share never crosses into another. Under California Probate Code § 246, this is what you get when you write "per stirpes" or "by right of representation" in a California instrument.
Per capita at each generation starts the division at the first generation where at least one member is still alive, then pools all leftover shares from deceased members at that level and divides the pool equally among every surviving descendant one generation down — regardless of which branch they belong to. This ensures all grandchildren receive identical amounts. Uniform Probate Code § 2-106 codifies this method. An ACTEC survey included in the UPC's official commentary found that 71% of estate planning clients preferred this approach over strict per stirpes (19%) or the older UPC system (9%).
Pure per capita goes further: it distributes only to the living members of the specific class you named. If you write "to my children, per capita" and only one of three children survives you, that child inherits 100% of the share — the two deceased children's grandchildren receive nothing.
The danger lives in the phrase "by representation." California Probate Code § 246 treats "by representation" or "by right of representation" as per stirpes. New York's EPTL § 2-1.2, however, uses "by representation" to describe its own post-1992 default — a pooling method that differs from strict per stirpes when multiple children predecease you. Writing "to my descendants, by representation" without knowing your state's definition is one of the most common drafting errors in estate planning.
One Family, Three Outcomes: A $600,000 Worked Example
Consider David, who has a $600,000 estate and three children: Alice (surviving), Ben (predeceased, leaves two children: Beth and Brad), and Carlos (predeceased, leaves one child: Clara).
| Recipient | Strict per stirpes | Per capita at each generation | "To my children, per capita" |
|---|---|---|---|
| Alice | $200,000 | $200,000 | $600,000 |
| Beth (Ben's child) | $100,000 | $133,333 | $0 |
| Brad (Ben's child) | $100,000 | $133,333 | $0 |
| Clara (Carlos's child) | $200,000 | $133,333 | $0 |
| Total | $600,000 | $600,000 | $600,000 |
How the math works:
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Strict per stirpes: The estate splits into three equal $200,000 shares at the children's level. Alice takes hers. Ben's $200,000 divides between his two children ($100,000 each). Carlos's $200,000 goes entirely to his one child, Clara. Notice the disparity: Clara receives twice what Beth or Brad receives, despite all three grandchildren being equally related to David.
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Per capita at each generation (UPC § 2-106): Alice takes her $200,000. Ben's $200,000 and Carlos's $200,000 are pooled into $400,000. That pool divides equally among all three grandchildren at the next generation: $133,333 each. Every grandchild receives the same amount.
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"To my children, per capita": Only living members of the named class ("children") inherit. Alice is the sole surviving child. She takes the entire $600,000. Beth, Brad, and Clara receive nothing because they were never named beneficiaries and per capita does not pass shares down.
The three-way table makes clear why the phrasing in your will is not a formality — it is the mechanism that determines who walks away with what.
Your IRA and 401(k) Are a Separate Battlefield
Your will may say "per stirpes" in clear, explicit language. That instruction does not extend to retirement accounts. IRA and 401(k) beneficiary designations supersede your will entirely — the form you signed at account opening controls those assets, full stop.
The custodian default problem. Charles Schwab's IRA beneficiary designation defaults to per capita. If you name three children and one predeceases you, Schwab will redistribute that child's share equally among your two surviving children — cutting out your grandchildren — unless you have explicitly opted into per stirpes on the form. Vanguard, by contrast, offers a relationship-based "My descendants" option that functions as per stirpes. Custodian defaults vary; never assume.
Some 401(k) plans do not support per stirpes at all. Employer-sponsored retirement plans follow ERISA and their own plan documents. If your 401(k) administrator's form has no per stirpes option, you may need to submit a written addendum or consult the plan administrator directly. A rollover to an IRA — which typically offers more flexibility — can be worth considering for this reason alone.
The SECURE Act 2.0 overlay. Under the Setting Every Community Up for Retirement Enhancement (SECURE) Act of 2019 and SECURE 2.0 of 2022, most non-spouse beneficiaries of inherited IRAs — including grandchildren who inherit via a per stirpes designation — must withdraw the full inherited balance within 10 years of the original account owner's death. The 10-year rule applies regardless of whether the inheritance reaches them through per stirpes or per capita; the designation controls who inherits, not how long they have to withdraw. Missing the annual required minimum distributions during that window now carries a 25% IRS excise tax on the shortfall under SECURE 2.0. If you are planning your will online, coordinate your beneficiary form language with your financial advisor before finalizing either document.
State Default Rules: What Happens When Your Will Is Silent
If your will does not specify a distribution method — or if you die without a will — your state's intestacy law fills the gap. The method your state applies can produce dramatically different results for the same family.
| State | Default method when will is silent | Governing statute |
|---|---|---|
| California | Per capita with representation (right of representation) | Cal. Prob. Code § 240 |
| Texas | Per capita with representation | Tex. Est. Code § 201.101 |
| New York | By representation (since Sept. 1, 1992) | N.Y. EPTL § 2-1.2 |
| ~18 UPC states* | Per capita at each generation | UPC § 2-106 |
| ~1/3 of remaining states | Strict per stirpes | Varies by state code |
*Alaska, Arizona, Colorado, Hawaii, Idaho, Maine, Massachusetts, Michigan, Minnesota, Montana, Nebraska, New Jersey, New Mexico, North Dakota, Pennsylvania, South Carolina, South Dakota, and Utah have adopted the Uniform Probate Code.
The takeaway: two people with identical families and identical estates, living in different states, can see their grandchildren inherit wildly different amounts based solely on where they die. A written will with an explicit distribution method is the only way to override these defaults. If you live in California, Texas, or New York, explore the state-specific pages at Pactlio Wills, /wills/texas, and /wills/new-york for instructions that match your state's exact statutory language.
How to Choose: A Decision Table
| Your family situation | Recommended method | Reason |
|---|---|---|
| You have children with different numbers of kids (unequal branches) | Per capita at each generation | Grandchildren receive equal shares regardless of which branch they belong to |
| You want each child's branch to carry exactly its proportional share, even if it means unequal grandchild amounts | Strict per stirpes | Locks in equal shares per original branch regardless of branch size |
| You want assets only to go to the specific individuals you name, with no automatic pass-down | Per capita (name your class explicitly) | Share redistributes among surviving named members; stops at that generation |
| You have blended-family beneficiaries or non-family beneficiaries | Per capita or name each person individually | Per stirpes only benefits lineal descendants; a predeceased friend or sibling's share won't pass to their children unless you specifically name them |
| You want simplicity and fewer updates as family grows | Per stirpes | Automatically covers newly born grandchildren of a named child without will amendment |
A will vs. living trust comparison matters here too: trusts can be drafted with more precise language than the binary options on a standard beneficiary form. If your family structure is complex, Pactlio Wills generates state-specific distribution language you can review with an attorney.
Common Mistakes to Avoid
- Writing "by representation" without knowing your state's definition. In California, this phrase triggers Cal. Prob. Code § 246 (per stirpes). In other states, it triggers pooling. The phrase is not universal; spell out your intent in plain language or reference the specific statute.
- Assuming your will controls IRA and 401(k) distributions. Beneficiary designation forms are separate legal instruments. A will that says "per stirpes" has no power over a retirement account form that defaults to per capita. Review every account independently.
- Forgetting contingent beneficiaries. If all primary beneficiaries predecease you and there are no contingent beneficiaries named, the asset typically falls to your estate — losing the probate bypass that beneficiary designations are designed to provide. See what happens if you die without a will for the intestacy chain that follows.
- Not updating after a beneficiary's death. A per stirpes designation on a retirement account handles the mechanics automatically, but your underlying will should be reviewed after any significant family change. Check how to update or revoke a will for the process.
- Using different methods across accounts. An IRA set to per stirpes and a 401(k) set to per capita creates unintended disparity between branches of the family. Audit all accounts for consistency.
- Treating per stirpes as covering stepchildren. Per stirpes flows only to lineal (biological or legally adopted) descendants unless the instrument explicitly includes stepchildren. A deceased beneficiary's spouse also does not inherit through per stirpes unless named separately.
To create your will online with distribution language that matches your state's statute and your family's actual structure, Pactlio Wills walks you through a plain-English interview and flags any gaps before you finalize.
Sources
- Uniform Probate Code § 2-106, Per Capita at Each Generation: https://www.uniformlaws.org/committees/community-home?CommunityKey=a539920d-c477-44b8-84fe-b0d7b1a4cca8
- California Probate Code §§ 240, 246, 247 (Intestate Succession and Distribution Methods): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=246
- Texas Estates Code § 201.101, Determination of Per Capita with Representation Distribution: https://codes.findlaw.com/tx/estates-code/est-sect-201-101/
- New York Estates, Powers and Trusts Law § 2-1.2, Issue to Take Per Capita, Per Stirpes or By Representation: https://nyestateslawyer.com/what-does-per-stirpes-mean
- New York EPTL § 4-1.1, Descent and Distribution of a Decedent's Estate: https://legalclarity.org/new-york-eptl-key-estate-and-trust-laws-explained/
- Massachusetts General Laws c.190B § 2-106 (Per Capita at Each Generation): https://www.mass.gov/info-details/mass-general-laws-c190b-ss-2-106
- SECURE Act of 2019 and SECURE 2.0 of 2022 — Inherited IRA 10-Year Rule (IRS Publication 590-B): https://www.irs.gov/publications/p590b
- Charles Schwab — IRA Beneficiary Default (Per Capita): https://www.finsyn.com/ira-beneficiary/
- Vanguard — IRA Beneficiary Designations, Per Stirpes Option: https://investor.vanguard.com/investor-resources-education/beneficiaries/adding-beneficiaries-to-ira
- NAIC Journal of Insurance Regulation (2023), "Life Insurance Beneficiaries — Per Capita vs. Per Stirpes": https://content.naic.org/sites/default/files/cipr-jir-2023-6.pdf
- Restatement (Third) of Property (Wills and Donative Transfers) § 2.3 — Per Stirpes, Per Capita, By Representation: Referenced via Greenleaf Trust commentary at https://greenleaftrust.com/missives/per-stirpes-its-not-as-simple-as-you-thought/
- ACTEC Survey of Client Preferences (71% preferred per capita at each generation): Cited in UPC § 2-106 Official Comment, summarized at https://www.mass.gov/info-details/mass-general-laws-c190b-ss-2-106
This article is general information, not legal advice. Laws vary by jurisdiction. Pactlio generates professional drafts for review — have a licensed attorney review anything important.
Frequently Asked Questions
What is the difference between per stirpes and per capita?▾
Per stirpes ("by branch") passes a deceased beneficiary's share down to their own children. Per capita ("by head") splits that share among the surviving members of the named class — typically your surviving children — cutting out grandchildren entirely. The difference only matters when a named beneficiary dies before you.
Which is better, per stirpes or per capita?▾
Per stirpes is better if you want each child's branch of the family to stay whole — a grandchild steps into a deceased parent's shoes. Per capita is better if you want only the specific people you named to inherit, with no automatic pass-down to their children. Neither is universally correct; it depends on your family structure.
What does per stirpes mean on a beneficiary form?▾
On an IRA, 401(k), or life insurance form, per stirpes means that if a named beneficiary dies before you, their share flows to their own children rather than being redistributed to your other surviving beneficiaries. You typically add "per stirpes" after each beneficiary's name or check a box on the custodian's form.
Does per stirpes override a will?▾
No. A per stirpes designation on a retirement account or life insurance policy controls that specific asset independently of your will. IRA and 401(k) beneficiary designations supersede any will instructions. You must add per stirpes language to both your will and each account's beneficiary form separately — one does not carry over to the other.
What is per capita at each generation?▾
Per capita at each generation is a third distribution method codified in Uniform Probate Code § 2-106. It starts the share count at the first generation with a surviving member and then pools all deceased members' leftover shares, splitting the pool equally across every surviving descendant at the next level — ensuring all grandchildren receive the same amount regardless of which branch they belong to.
What happens to a per stirpes share if a beneficiary has no children?▾
If a per stirpes beneficiary predeceases you and leaves no surviving descendants, their share does not go to their children — because there are none. Instead, that share is typically redistributed among the surviving named beneficiaries or falls back into the estate to be divided according to the remaining instructions in your will.
What is the default distribution method when there is no will?▾
It depends on your state. Approximately 18 states that adopted the Uniform Probate Code default to per capita at each generation (UPC § 2-106). California and Texas use per capita with representation (Cal. Prob. Code § 240; Tex. Est. Code § 201.101). New York changed its default from per stirpes to "by representation" in 1992 under EPTL § 2-1.2. About one-third of states still use strict per stirpes.
Does the SECURE Act affect per stirpes IRA designations?▾
Yes. Under the SECURE Act of 2019, most non-spouse beneficiaries — including grandchildren who inherit via a per stirpes designation — must withdraw an inherited IRA in full within 10 years of the original owner's death. Per stirpes itself does not change this 10-year rule; it determines who the inheritors are, not how long they have to withdraw.