Also known as: per capita · per capita distribution · by head
Written by attorneys · grounded in primary & secondary sources — see below
A method of distributing property to a decedent's descendants under which the estate is divided into equal shares at the generation nearest the decedent that contains one or more surviving descendants. Each surviving descendant in that generation receives one share. The share of any deceased descendant in that generation passes by representation to that descendant's surviving issue.
Decedent Portia Price dies intestate survived by two children and three grandchildren whose parent predeceased her. The per capita approach divides the estate into three shares at the children's generation. Each living child receives one share. The third share passes equally to the three grandchildren.
After a federal statute alters descent rules for fractionated Indian allotments, heirs including Patricia Patel and her cousins challenge the change as a taking. The per capita approach would have allocated equal shares among surviving descendants at the nearest generation with live takers, but the statute's restrictions prevent that distribution and prompt the constitutional claim.
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The per capita approach divides the estate at the first generation containing a surviving descendant rather than always dividing at the children's generation. Shares of deceased members in that generation then drop by bloodline to their issue.
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The first division occurs at the generation nearest the decedent that contains one or more surviving descendants. All members of that generation who are alive or who left surviving issue receive a share in the initial division.
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No. An individual who is deceased and left no surviving descendant is disregarded when counting shares under the per capita approach.
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That share is combined with any other remaining shares and then divided in the same manner among the surviving descendants of the deceased descendants as if the original recipients and their issue had predeceased the distribution date.
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…members of the Peoria Tribe are statutorily entitled under 84 Stat. 688, 25 U. S. C. § 1222. See 25 U. S. C. § 1226 ("Any per capita share, whether payable to a living enrollee or to the heirs or legatees of a deceased enrollee, which the Secretary of the Interior is unable to deliver within two years after the date the…