Per Capita: Definition and How It Works in California

By Eric Ridley, attorney, Ridley Law. Updated September 2026.

Per capita divides an inheritance into equal shares by generation. In California the usual form is per capita at each generation: everyone at the same level who takes a share gets the same amount, even when their parents died leaving different numbers of children.

How it works in California

Prob. Code, § 247 describes per capita at each generation. The property is first divided into equal shares at the nearest generation that has a living member, one share for each living member and one for each deceased member who left descendants. The living members take their shares. The shares of the deceased members are then pooled and divided equally among their descendants at the next generation, and the process repeats if needed. The comparison with the other common method is laid out in per stirpes vs. per capita.

Which method applies depends on the words used. When a will or trust leaves property to someone’s “issue” or “descendants” without saying how to divide it, Prob. Code, § 245 applies the method in § 240, which works the same way and is also the method California uses for intestate succession. When a document says “per stirpes” or “by representation,” § 246 applies instead.

Why it matters

The two methods give the same result when only one child has died, and different results when two or more children died leaving different numbers of children. For example, a parent leaves everything to her descendants. One child is alive, one child died leaving one child, and one child died leaving three children. Per stirpes gives the living child one-third, the only child of the second branch one-third, and each of the three grandchildren in the third branch one-ninth. Per capita at each generation gives the living child one-third and splits the other two-thirds equally among all four grandchildren, one-sixth each.

Common mistakes

Writing “per capita” without saying which version is meant, since older documents sometimes use the phrase loosely. Assuming a gift to “my descendants” is divided per stirpes when the document is silent, when California’s default for that wording is the § 240 method.

Related terms

• Intestate succession: the rules that apply when there’s no will, which divide shares among descendants under the same § 240 method.
• Per stirpes: the other common method, which divides by family branch instead of by generation.
• Lineal Descendants: children, grandchildren, and so on down the direct line.

Part of the California estate planning glossary. For the full treatment, see Per Stirpes vs. Per Capita in California: What They Actually Mean.