Per stirpes, per capita and representation, for New Jersey 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. New Jersey’s definition of “per stirpes” in an instrument (N.J.S.A. 3B:1-2) reads this way; it is not the intestate default.

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 New Jersey’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 New Jersey this is “by representation”, the statutory method for an intestate estate passing to descendants (N.J.S.A. 3B:5-6; N.J.S.A. 3B:5-4(a)) and the meaning of “by representation” or “per capita at each generation” in an instrument (N.J.S.A. 3B:1-2).

The same family tree can come out differently under different governing words — which is why the instrument controls. New Jersey’s statute defines “by representation” for an intestate estate (N.J.S.A. 3B:5-6) and defines “per stirpes”, “per capita” and “by representation” as words of an instrument (N.J.S.A. 3B:1-2); where a governing instrument provides for issue or descendants and expresses no contrary intention, they take by representation (N.J.S.A. 3B:3-41). 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 or a descendant of the decedent survives and whether every surviving descendant is also the spouse’s (N.J.S.A. 3B:5-3); New Jersey has no community property of its own, and a surviving spouse’s elective share is a separate question (N.J.S.A. 3B:8-1).

Frequently asked questions

What does "by representation" mean under New Jersey law?

For an intestate estate passing to the decedent's descendants, N.J.S.A. 3B:5-6(b) divides the estate into as many equal shares as there are surviving heirs in the nearest generation of descendants that contains one, and deceased members of that generation who left surviving descendants; each surviving heir 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 members. That is per capita at each generation — the calculator's third column, labeled as New Jersey's default — and N.J.S.A. 3B:1-2 gives the words "by representation" and "per capita at each generation" the same meaning in an instrument.

What do "per stirpes" and "per capita" mean in a New Jersey instrument?

N.J.S.A. 3B:1-2 defines them: a gift "per stirpes" is divided into as many equal shares as there are living children of the designated ancestor and deceased children who left descendants then living, each surviving child taking one share and a deceased child's share divided the same way among that child's descendants — the strict per stirpes column; a gift "per capita" is divided equally among the living descendants without representation — the simplest division. The instrument's words pick the rule.

What is the surviving spouse's intestate share in New Jersey?

The surviving spouse, civil-union partner or domestic partner 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 descendant; the first 25% of the estate, not less than $50,000 nor more than $200,000, plus three-fourths of the balance where no descendant but a parent survives; and the first 25% on the same floor and cap plus one-half of the balance where the spouse has a descendant who is not the decedent's, or the decedent has one who is not the spouse's (N.J.S.A. 3B:5-3). The rest passes to the descendants by representation (N.J.S.A. 3B:5-4).

What is the elective share in New Jersey?

A surviving spouse, civil-union partner or domestic partner of a person dying domiciled in New Jersey may take an elective share of one-third of the augmented estate, unless a complaint for divorce or dissolution was pending at the death (N.J.S.A. 3B:8-1); the election is by complaint in the Superior Court within six months after the appointment of a personal representative (N.J.S.A. 3B:8-12). Whether a trust's assets form part of the augmented estate is a question for a licensed New Jersey 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; N.J.S.A. 3B:1-2 supplies the meaning of those words where the instrument does not. 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 New Jersey law, not legal advice.