per capita at the nearest generation with a survivorphr.//pər ˈkæp.ɪ.tə/ (per KAP-ih-tuh)/
A will or trust that divides property “per capita at the nearest generation with a survivor” gives everything to the closest generation that still has a living member, and nothing to the children of anyone in that generation who died first. The label resembles per capita at each generation, yet the grandchildren of a deceased child can be left out entirely while any of that child's siblings is alive.
Per capita at the nearest generation with a survivor (per capita is Latin for “by heads”) is a method for dividing property among a person's descendants in which only the closest generation with at least one living member takes anything. The property is divided into equal shares, one for each living descendant in that generation. Descendants of a member who died before the distribution date receive nothing as long as anyone in that nearer generation is alive. If no one in the first generation (for example, children) is living, the entire distribution passes to the next generation that has a living member (for example, grandchildren), divided equally among them regardless of which branch of the family each belongs to.
The method has no representation: a deceased descendant's children never step into that descendant's place. That sets it apart from per capita at each generation, by representation, and per stirpes, each of which gives a share to the descendants of a family member who died first. Take three children, one living and two deceased who each left children of their own. Under this method the living child takes the whole distribution; under the other three methods, the deceased children's children would share in it. Because the label so closely resembles per capita at each generation, a will or trust that uses it should define it expressly, and the choice is worth confirming directly with the person making the plan.
Colorado's rules of construction for wills and trusts (C.R.S. § 15-11-709) define per capita at each generation, per stirpes, and by representation, but not this method, so a Colorado instrument that uses it must supply its own definition. A label that contains the words “per capita at each generation” invites an argument that the statutory definition of that phrase controls instead. [verify] Wyoming likewise has no statutory definition of this method; its intestacy default is strict per stirpes (Wyo. Stat. § 2-4-101). A Wyoming will or trust that uses this method should define it in the instrument.
Related terms
- per capita at each generationWhether grandchildren inherit equally with their cousins or in different amounts can turn on which of three look-alike phrases a will or trust uses: “per capita at each generation,” “by representation,” or “per stirpes.” Under per capita at each generation, the estate is divided into equal shares at the nearest generation with a living member, and the shares of those who died first are pooled and split equally among the next generation, so descendants equally related to the deceased receive equal amounts.
- by representationWhich descendants inherit, and how much, can hinge on whether a will or trust says “by representation,” “per stirpes,” or “per capita at each generation,” three phrases that look interchangeable but can split the same estate very differently. Under “by representation,” the estate is divided at the nearest generation with a living member, and a deceased person's share then passes down their own branch of the family to their descendants, who “represent” the relative who died.
- per stirpesHow an inheritance is split among descendants when some have died first can turn on whether a will or trust says “per stirpes,” “by representation,” or “per capita at each generation,” three phrases that look interchangeable but can divide the same estate very differently. Under strict per stirpes, the estate is always split into equal shares at the children's generation, one share per child, and a deceased child's share drops straight down that child's branch of the family, even if no child is still living.