Per capita at each generation, per stirpes and representation, for Massachusetts trustees

The three systems, in one sentence each

Strict per stirpes — the division always begins at the children’s generation, one share per child living or deceased with descendants living; a deceased child’s share splits among that child’s own descendants. Not Massachusetts’s intestate default; a trust that uses the words is read on its own terms.

Per capita with representation — divide at the nearest generation with a surviving member: one share for each survivor there and for each deceased member who left descendants; a deceased member’s share passes down to that member’s own descendants. Not Massachusetts’s statutory default; a trust that wants it says so in its own words.

Per capita at each generation — divide at the nearest generation with survivors; the deceased members’ shares are combined and divided equally among the next generation’s takers, so equally-near relatives take equally. In Massachusetts this is the statutory method for an intestate estate passing to descendants (G.L. c. 190B, § 2-106(b); § 2-103(1)).

The same family tree can come out differently under different governing words — which is why the instrument controls. Massachusetts’s statute defines “per capita at each generation” for an intestate estate (G.L. c. 190B, § 2-106); a trust may define its own scheme or name alternate takers, and reading a particular instrument against the statute is licensed-attorney work. A surviving spouse’s intestate share depends on whether a parent of the decedent survives and whether every surviving descendant is also the spouse’s descendant (§ 2-102); Massachusetts has no community property of its own, and a surviving spouse’s waiver of a will and claim of a share is a separate question (G.L. c. 191, § 15).

Frequently asked questions

What does "per capita at each generation" mean under Massachusetts law?

For an intestate estate passing to the decedent's descendants, G.L. c. 190B, § 2-106(b) divides the estate into as many equal shares as there are surviving descendants in the generation nearest the decedent that contains a surviving descendant and deceased descendants in that generation who left surviving descendants; each surviving descendant in that generation takes one share, and the remaining shares are combined and divided in the same manner among the surviving descendants of the deceased descendants. That is the calculator's per capita at each generation column, labeled as Massachusetts's default.

What is the surviving spouse's intestate share in Massachusetts?

The surviving spouse takes the entire intestate estate where no descendant or parent of the decedent survives, or where every surviving descendant is also the spouse's and the spouse has no other surviving descendant; the first $200,000 plus three-fourths of the balance where no descendant but a parent survives; and the first $100,000 plus one-half of the balance where the spouse has a surviving descendant who is not the decedent's, or the decedent has one who is not the spouse's (G.L. c. 190B, § 2-102). The rest passes to the descendants per capita at each generation (§ 2-103).

What is a surviving spouse's claim against a will in Massachusetts?

Within six months after the probate of the will, a surviving spouse may file a writing in the registry of probate waiving the will's provisions and claiming a portion of the estate — one-third of the personal and real property where the deceased left issue; $25,000 and one-half of the rest where the deceased left kindred but no issue — with only the income for life of any amount above $25,000 in either case (G.L. c. 191, § 15). Whether a trust's assets count toward it is a question for a licensed Massachusetts attorney of your choosing.

Which distribution rule does my trust use?

The trust instrument's own words decide — a trust may say per stirpes, by representation or per capita at each generation, define its own scheme, or name alternate takers. This page shows each rule's arithmetic; reading a particular instrument against the statute is licensed-attorney work.

Do the three systems always produce different shares?

No — while every child is living they produce identical shares. The rules diverge only after certain deaths, which is exactly when the wording in the instrument starts to matter.

General information about Massachusetts law, not legal advice.