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 gives property to “descendants” or “issue” without saying how to divide it, California fills the gap with Probate Code § 240: the split starts at the nearest generation with a living member, and each deceased member’s share passes down that member’s branch. In most families that matches per stirpes. If you want the pure branch-by-branch result from your children down, 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.

	Per stirpes	Per capita
Meaning	“By the roots”	“By the head”
If a beneficiary dies before you	The share passes down to that person’s own children	Everything is pooled and split equally among whoever is alive at a chosen level
Keeps each family branch whole	Yes	No
When it fits	Most parents, who want a predeceased child’s kids to inherit that child’s share	Narrower goals, such as treating every grandchild identically regardless of branch

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 and Ben both die before their mother. Ann leaves two kids, Ben leaves one, and Carol is alive.

Per stirpes (§ 246): Carol gets $300,000. Ann’s $300,000 branch passes to her two children, $150,000 each. Ben’s $300,000 goes to his one child. Each branch stays whole.
California’s default (§ 240): Carol is alive, so the split starts at the children’s generation, and the result is the same as per stirpes.
Per capita at each generation (§ 247): Carol still gets $300,000, but the other $600,000 is pooled and divided among the three grandchildren, $200,000 each. Ann’s children get more than Ann’s branch would have, and Ben’s child gets less than Ben’s.

Who	Amount
Carol, either method	$300,000
Ben's child, per stirpes	$300,000
Each grandchild, per capita	$200,000
Each of Ann's two kids, per stirpes	$150,000

The default and per stirpes part ways mainly when no one in the first generation is alive. If all three children die first, § 240 starts at the grandchildren and splits equally among them, while per stirpes still divides by branch from the children down. Per capita at each generation pools further. Writing your method on purpose removes the guesswork.

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 (see also §§ 245 and 21110): the split starts at the nearest generation with a living member, and each deceased member’s share passes down that member’s branch. In most families that produces the same result as per stirpes. 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 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.

Frequently Asked Questions

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?

Probate Code § 240. If you name descendants or issue but don’t specify a distribution method, that statute controls: the split starts at the nearest generation with a living member, and each deceased member’s share passes down that member’s branch. That usually matches per stirpes, but not always. To get the pure branch-by-branch result, write “per stirpes.”

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

Usually, if your document is silent. A deceased child’s issue take that child’s place under Probate Code §§ 21110 and 240, unless your document says otherwise or requires the child to survive you. The result can differ from per stirpes when no one in the first generation survives. Writing “per stirpes” removes the doubt.

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 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 § 240, which usually matches per stirpes, 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 (California’s default when an instrument is silent); §§ 245 and 21110 (when § 240 applies); Cal. Prob. Code § 246 (“per stirpes” as written); Cal. Prob. Code § 247 (“per capita at each generation”).

See also: per stirpes and per capita in the California estate planning glossary.