Per Stirpes vs Per Capita: How One Phrase Changes Your Whole Will
A retired Calgary couple signs identical mirror wills in 2008 leaving everything to each other, then to their three adult children in equal shares "per capita." The middle child dies in 2019, leaving two young children of his own. The husband dies in 2024. When the wife dies in 2026, the executor distributes the residue: each of the two surviving siblings receives half. The middle child's two children — the testator's grandchildren — inherit nothing.
If the wills had said "per stirpes" instead of "per capita," the same residue would have been divided three ways: one third to each surviving sibling, and one third split equally between the two grandchildren of the deceased child. The total inheritance to the deceased middle child's branch of the family would have been one third of the estate instead of zero.
One word in the wills, drafted at the kitchen table in 2008. Roughly $480,000 in changed inheritance for the grandchildren in 2026.
The terms in plain English
Per stirpes is Latin for "by branch." A per stirpes distribution treats each named beneficiary as the head of their own branch of the family. If a beneficiary predeceases the testator, their share does not redistribute among the surviving same-generation beneficiaries — it flows down their branch to their own descendants.[1]
Per capita is Latin for "by head." A per capita distribution divides the share equally among the named beneficiaries who are alive at the relevant date. If a beneficiary predeceases, their share is redistributed among the survivors in the same class.
The two principles produce identical results when all named beneficiaries survive the testator. The difference only emerges when at least one named beneficiary predeceases — which over a 30-year horizon happens in roughly half of all Canadian estates.
Worked example
The cleanest way to see the difference is with a worked example. Assume:
- Testator has three children: Alice, Bob, and Carol.
- Bob predeceases the testator, leaving two children of his own: Bob Jr. and Beth.
- Alice has one child, Adam.
- Carol has no children.
- The residue of the estate is $900,000.
Under per stirpes ("to my children in equal shares per stirpes"):
| Beneficiary | Share |
|---|---|
| Alice | $300,000 |
| Bob Jr. | $150,000 (half of Bob's $300,000) |
| Beth | $150,000 (half of Bob's $300,000) |
| Carol | $300,000 |
Each branch of the family — Alice's, Bob's, Carol's — receives the same total. Bob's share is preserved for his branch by passing to his children.
Under per capita ("to my children in equal shares per capita"):
| Beneficiary | Share |
|---|---|
| Alice | $450,000 |
| Carol | $450,000 |
Bob Jr. and Beth receive nothing. The share that would have gone to Bob is redistributed among the surviving named beneficiaries in the same class (his sisters).
Under per capita at each generation (sometimes used as a hybrid):
| Beneficiary | Share |
|---|---|
| Alice | $300,000 |
| Carol | $300,000 |
| Bob Jr. | $150,000 |
| Beth | $150,000 |
This particular pattern happens to produce the same result as per stirpes in this scenario. In more complex family trees with multiple deceased beneficiaries across generations, the per capita at each generation method generates different distributions.
Which is the default in Canadian wills
Defaults vary by province, by the specific drafting in the will, and by the statutory anti-lapse rule in play.
In Ontario, section 31 of the Succession Law Reform Act provides a default rule for gifts to certain close relatives of the testator (children, grandchildren, and siblings) where the beneficiary predeceases. The gift passes to the beneficiary's own surviving descendants — effectively a per stirpes outcome.[1]
BC's Wills, Estates and Succession Act contains similar provisions in section 46 of WESA, generally producing a per stirpes-style result for gifts to descendants.[2]
Alberta's Wills and Succession Act follows a comparable pattern.[3]
The trap is that these statutory defaults apply only when the will is silent. Where the will uses ambiguous language — "to my children in equal shares" without specifying per stirpes or per capita — the default supplies the missing rule. But where the will affirmatively says "per capita," the default is overridden. The Calgary scenario at the top illustrates this exactly: the testators specifically chose per capita, which overrode the default per-stirpes-style rule.
When per stirpes is the right choice
For most Canadian families, per stirpes matches the intuitive sense of fairness. Each branch of the family inherits the same total. Grandchildren of a deceased child are not penalised for the timing of their parent's death.
Per stirpes is generally the right choice when:
- The testator wants each child's branch of the family to inherit the same total
- The testator has grandchildren whose lifestyle would be materially affected by inheriting their parent's share
- The testator wants to preserve the family-line principle that drives most intestacy schemes
- The testator does not want to inadvertently disinherit grandchildren because of the timing of a child's death
When per capita is the right choice
Per capita is less common but has legitimate uses:
- Generation-skipping intentions reversed. The testator wants to channel wealth to the surviving same-generation beneficiaries rather than down to grandchildren — perhaps because the grandchildren already have their own trust funds or have inherited from a different source.
- Estranged grandchildren. The testator deliberately wants the share that would have gone to a deceased child not to flow to that child's children for specific personal reasons.
- Simplification. Per capita can reduce the number of beneficiaries the executor must track and distribute to, which has marginal administrative benefit on very small estates.
Per capita should be chosen affirmatively, not by default and not by accident. A testator who is unsure should generally default to per stirpes.
When per capita at each generation makes sense
The per capita at each generation method is a hybrid that aims to capture the fairness of per stirpes while also treating same-generation cousins more equally across branches. In a family with three children where two have one child each and the third has six children, per stirpes gives each of the six grandchildren in the large branch one-sixth of one-third — a much smaller individual share than the only-children of the other branches.
Per capita at each generation pools deceased beneficiaries' shares and divides them equally among the next generation, which can produce more even treatment across the cousin generation. Whether that is desirable depends on the testator's intent.
Drafting language that actually works
Effective per stirpes drafting in a Canadian will reads something like:
I give the rest, residue, and remainder of my estate to my children, [Names], in equal shares per stirpes.
The phrase per stirpes is interpreted consistently across Canadian common law to mean a by-branch distribution. Some lawyers prefer the more explicit "to my children in equal shares per stirpes, so that if any of my children predeceases me leaving descendants who survive me, that child's share shall be divided per stirpes among that child's descendants" — verbose, but eliminates any room for argument about what was meant.
Effective per capita drafting needs to be equally explicit:
I give the rest, residue, and remainder of my estate to those of my children, [Names], who survive me by thirty days, in equal shares per capita. If none of my children survive me, then to my grandchildren who survive me by thirty days, in equal shares per capita.
The trap to avoid: "per stirpes" attached to a class that does not naturally form a stirpes (a defined line of descent). "To my friends per stirpes" is nonsensical and generates litigation.
What we focus on at It's Simple Will
The It's Simple Will questionnaire defaults to per stirpes for distributions to descendants, with explicit explanation of what the choice means and the option to switch to per capita if that better matches the user's intent. We surface a plain-English worked example during the questionnaire — typically a three-child scenario with one predeceased — so the user understands the choice they are making.
The framing that lands with most users: per stirpes asks "what would the testator have wanted for each branch of the family?" Per capita asks "what would the testator have wanted for the named beneficiaries who actually survived?" Most Canadian families want the first; some specifically want the second; almost no one wants to find out by accident.
Related reading: residuary clauses in Canadian wills, specific bequests in Canadian wills, and our pillar on how to write a will in Canada.
Citations & sources
- [1]Succession Law Reform Act, RSO 1990, c S.26 — section 31 (anti-lapse for descendants) — Government of Ontario
- [2]Wills, Estates and Succession Act, SBC 2009, c 13 (British Columbia) — BC Laws — Queen's Printer
- [3]Wills and Succession Act, SA 2010, c W-12.2 (Alberta) — Alberta King's Printer
- [4]Child, Youth and Family Services Act, 2017, SO 2017, c 14, Sch 1 — adoption and inheritance — Government of Ontario
Frequently asked questions
Which is the default in Canadian wills if I do not specify per stirpes or per capita?
Default rules vary by province and by drafting context. Where a will simply says 'to my children in equal shares' without further detail, each province's succession statute supplies a default for what happens when a child predeceases — Ontario's anti-lapse provision (s.31 of the Succession Law Reform Act), BC's WESA provisions, and equivalents in other provinces. The defaults usually produce something close to per stirpes for gifts to descendants, but the safer practice is to specify explicitly rather than rely on the default.
Is per stirpes always the right choice?
Often but not always. Per stirpes is the default expectation for most Canadian families because it preserves the bloodline-fair-share principle — each branch of the family inherits the same total whether or not the parent of that branch is alive. Per capita is sometimes preferred where the testator wants to disinherit by branch or has specific generation-skipping intentions. Per capita with right of representation, a hybrid, is also sometimes used to balance the two principles.
How does per stirpes interact with adopted children?
Across all Canadian common-law provinces, adopted children are treated as the legal children of their adoptive parents for inheritance purposes. A bequest 'to my children per stirpes' includes adopted children of the testator, and a bequest 'to my descendants per stirpes' includes the testator's children's adopted children. The treatment generally cuts off any inheritance right from the biological family after adoption, but exceptions exist — particularly for adoptions of adults and step-parent adoptions in some provinces.
Can per stirpes be used for non-relatives or for charities?
Per stirpes is built around the idea of bloodline descendants and is generally meaningful only when the beneficiaries form a defined descent group — typically the testator's own descendants. It does not naturally apply to bequests to friends, distant relatives, or charities. For those bequests, explicit alternate or contingent beneficiaries are the standard approach.
Does per stirpes apply to beneficiary designations on registered accounts and life insurance?
Sometimes, but not always automatically. Most Canadian financial institutions accept 'per stirpes' designations on RRSPs, RRIFs, TFSAs, and life insurance policies — but each institution has its own form, and some treat the term inconsistently. The safest practice is to specify the exact distribution pattern on the institution's beneficiary designation form rather than rely on a single shorthand term that may be interpreted differently by each issuer.