Per Stirpes vs. Per Capita in California: What They Actually Mean

Short answer: Per stirpes means a deceased beneficiary’s share drops down to that person’s own children — it follows the bloodline, by branch. Per capita means the estate is split equally among the living individuals at a given level. When your document is silent, California’s default is per capita at each generation (Probate Code § 240). If you want the branch-by-branch result, you have to say “per stirpes” — and California honors that written instruction (Probate Code § 246). Most parents want per stirpes, so a predeceased child’s kids inherit that child’s share. Say so in the document.

Code sections verified against the California Probate Code, 2026. This is general information, not legal advice for your situation.

The plain-English difference

Both terms answer one question: when a beneficiary dies before you do, where does their share go? Per stirpes — Latin for “by the roots” — keeps the share inside that person’s branch of the family. If your daughter dies before you, her share passes to her children (your grandchildren through her). Per capita — “by the head” — instead pools everything and splits it equally among whoever is alive at a chosen level, without regard to which branch they came from. The two can produce very different results for the same family, which is why the choice matters more than it sounds.

A concrete example

Say a Camarillo widow has an estate of $900,000 and three children: Ann, Ben, and Carol. Her plan says “equally to my three children.” Now suppose Ann dies before her mother, leaving two kids of her own (two grandchildren), while Ben and Carol are both alive and have no children yet.

• Per stirpes: The estate splits into three branches. Ben gets his $300,000, Carol gets her $300,000, and Ann’s $300,000 branch passes down to Ann’s two children — $150,000 each. Ann’s family still inherits Ann’s share.
• Per capita at each generation (California’s default under § 240): Because Ann is deceased, her share and the living descendants are treated at the grandchild level in a way that can pool and divide differently. Depending on the family structure, Ann’s children may share equally with each other but not simply “step into Ann’s shoes” the way per stirpes guarantees.

The takeaway is not the exact math of every permutation — it’s that leaving it to the default can produce a split you didn’t intend. If you want Ann’s kids to get exactly what Ann would have gotten, per stirpes is the clean way to lock that in.

What California does when you say nothing

If your will or trust just says “to my descendants” or “to my children, and if a child predeceases me, to their issue” without specifying a method, California fills the gap with Probate Code § 240 — per capita at each generation. That’s a modern default meant to treat cousins at the same generation equally. It’s a reasonable rule, but it may not be what you’d choose, and most people have never heard of it. The fix is simple: don’t rely on the default. State your method.

California also gives your written words priority. Under Probate Code § 246, if you write “per stirpes,” the estate is distributed by branch the way per stirpes requires — your instruction controls over the default. So the power is entirely in your hands; you just have to use the right word on purpose.

Which should you choose?

For most families, per stirpes matches the instinct people already have: “If one of my kids dies before me, I want that child’s children to inherit their parent’s share.” That keeps each branch whole and treats your children’s families equally at the branch level. Per capita can make sense in specific situations — for instance, when you genuinely want all grandchildren treated identically regardless of how many kids each of your children had — but that’s the exception, not the rule.

Whatever you choose, the mistake to avoid is silence. Naming beneficiaries and then leaving the “what if they die first” question to a default is one of the quiet ways plans go sideways. If you’re setting up a trust and thinking through who inherits down the line, our overview of what a living trust is in California is a useful companion, and if grandchildren are part of the picture, see leaving assets to grandchildren instead of children.

What is the difference between per stirpes and per capita?

Per stirpes distributes by branch: if a beneficiary dies before you, their share passes down to their own children. Per capita distributes by head, splitting equally among the living individuals at a level. Per stirpes keeps each family branch whole; per capita treats individuals at a generation equally regardless of branch.

What is California’s default if my will or trust is silent?

California’s default is per capita at each generation under Probate Code § 240. If you name descendants but don’t specify a distribution method, that statute controls — which may not match what you’d have chosen. To get a branch-by-branch result you must write “per stirpes.”

If my child dies before me, do their kids automatically inherit their share?

Not automatically in the per-stirpes sense unless your document says so or the default happens to produce that result. Under California’s § 240 default, distribution among the surviving descendants can differ from a pure per-stirpes split. Writing “per stirpes” is how you guarantee a deceased child’s children step into that child’s exact share.

Does “per stirpes” override California’s default rule?

Yes. Under Probate Code § 246, if your document says “per stirpes,” the estate is distributed by branch as per stirpes requires, and that written instruction controls over the § 240 default. Your words on the page win — which is exactly why choosing the right term matters.

Which one do most people want?

Most parents want per stirpes, so that a predeceased child’s children inherit that child’s share and each family branch stays whole. Per capita fits narrower goals, like treating every grandchild identically regardless of family size. The right choice depends on your family, but the worst choice is saying nothing and letting the default decide.

The bottom line

Per stirpes follows the bloodline — a deceased beneficiary’s share drops to their children; per capita splits equally among the living at a level. California’s default when you’re silent is per capita at each generation under § 240, but “per stirpes” in your document controls under § 246. Most families want per stirpes, and the only way to be sure you get it is to write it in on purpose. If you’re not certain which one your current plan uses, that’s worth checking. Talk to Eric and we’ll read it back to you in plain English.

Sources: Cal. Prob. Code § 240 (per capita at each generation — California default); Cal. Prob. Code § 246 (“per stirpes” as written); Cal. Prob. Code § 247 (“per capita”).