What is per stirpes? What is per capita?

Ohio’s intestacy statutes identify who is entitled to take from a decedent’s estate, and in what proportion.  Several of these provisions include an obscure legal term: per stirpes.  Per stirpes (and its counterpart, per capita), often show up in wills, as well.

Per stirpes is latin for “by the branch” while per capita is latin for “by the head.”  Despite these terms’ obscurity, they bear heavily on the disposition of an individual’s assets.  They are very much worth understanding,  and are best illustrated by way of an example.

Per Stirpes Example:

Husband marries Wife.  Husband and Wife have two children, A and B.  A has two children, X and Y.  B has no children.

If A passes away, and Husband’s will left his assets equally to his children per stirpes, A’s children would each be entitled to 50% of A’s share.

So, if Husband’s estate had $200, and A is no longer living, a per stirpes distribution would entitle B to $100, and A’s $100 would be distributed equally to her children, X and Y, who would each receive $50 each.

Per Capita Example:

Husband marries Wife.  Husband and Wife have two children, A and B.  A has two children, X and Y.  B has no children.

If A passes away, and Husband’s will left his assets equally to his children per capita, A’s children and B would share in Husband’s estate in equal proportions.

So, if Husband’s estate had $200, and A is no longer living, a per capita distribution would entitle B to 1/3 of the $200, X to 1/3 of the $200 and Y to 1/3 of the $200.  X, Y and B would each receive $66.66.