Also known as: per capita · per capita distribution
Written by attorneys — see sources below.
A distribution scheme under which property passes in equal shares to qualifying members of a designated class. The scheme divides the property into as many shares as there are surviving members in the nearest generation to the designated ancestor plus deceased members of that generation who left surviving descendants, with each surviving member in the nearest generation receiving one share.
Parker Phillips died leaving a trust that directed distribution of the residue to his issue per capita at each generation. Parker is survived by his son Pavel and by three grandchildren through his predeceased daughter. The trustee divides the property into two equal shares at the children's generation. Pavel receives one share outright. The second share is divided equally among the three grandchildren.
Priscilla Parks conveyed land by deed to the children of her brother Pierce. Pierce had four living children at the time of the conveyance. The deed created a class gift that requires equal division among the four children without regard to any further descendants. Each child receives an undivided one-fourth interest.
The per capita rule at each generation divides property into shares based on the nearest generation containing survivors and then subdivides remaining shares among further descendants. Per stirpes divides at the children's level regardless of whether any children survive.
The rule applies when the instrument expressly calls for distribution per capita at each generation or by representation. Absent such language, default intestacy or other construction rules may control instead.
Yes. Only descendants who survive the distribution date or are deemed to survive receive shares. Deceased individuals without surviving descendants are disregarded entirely.
Once class membership is determined, each qualifying member receives an equal share. The rule applies unless the instrument or circumstances indicate a different intent such as per stirpes division.