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 issue living; a deceased child’s share splits among that child’s own issue. New York’s statutory “per stirpes” is not this division (EPTL 1-2.14 begins at the nearest generation with a survivor); an instrument reaches it only by its own words.
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 issue; a deceased member’s share passes down the same way to that member’s issue. In New York this is the statute’s “per stirpes” (EPTL 1-2.14).
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 York this is “by representation” (EPTL 1-2.16): the division of intestate shares among issue (EPTL 4-1.1), and of a gift to “issue” in an instrument executed on or after September 1, 1992 unless the instrument says otherwise (EPTL 2-1.2(b)).
The same family tree can come out differently under different governing words — which is why the instrument controls. In New York the words matter twice: “by representation” and “per stirpes” each have a statutory meaning (EPTL 1-2.16, 1-2.14), and a gift to “issue” in an instrument executed before September 1, 1992 is read under the earlier rule (EPTL 2-1.2(a)). A trust may also define its own scheme or name alternate takers, and reading a particular instrument against the statute is licensed-attorney work.
Try the arithmetic yourself
Model a family shape — who is living, who left children — and see each system’s exact split. Two generations (children and grandchildren); this is the math of each rule, not a suggestion of which to use.
Child 1
Child 2
- Grandchild 2.1
Child 3
- Grandchild 3.1
- Grandchild 3.2
| Person | Strict per stirpes | Per capita w/ representation | UPC per capita at each generation (NY default) |
|---|---|---|---|
| Child 1 | 1/3 (33.3%) | 1/3 (33.3%) | 1/3 (33.3%) |
| Grandchild 2.1 | 1/3 (33.3%) | 1/3 (33.3%) | 2/9 (22.2%) |
| Grandchild 3.1 | 1/6 (16.7%) | 1/6 (16.7%) | 2/9 (22.2%) |
| Grandchild 3.2 | 1/6 (16.7%) | 1/6 (16.7%) | 2/9 (22.2%) |
Arithmetic only — the exact fractions each rule produces for the shape you modeled, with New York’s default labeled as what EPTL 1-2.16 provides for intestate shares and for a gift to “issue” in an instrument executed on or after September 1, 1992. Not advice, and never a statement of which rule YOUR trust uses — the instrument’s own words decide that, and reading them is licensed-attorney work.
The Learning Center is general information about New York law — not legal advice, and not a substitute for advice from a licensed New York attorney about your specific facts. TrusteeClear is software, not a law firm.
Frequently asked questions
- What does "by representation" mean under New York law?
- EPTL 1-2.16 divides the property into as many equal shares as there are surviving issue in the generation nearest the deceased ancestor that contains a survivor, plus deceased issue in that generation who left surviving issue; each survivor there takes one share, and the remaining shares are combined and divided the same way among the surviving issue of the deceased members. It governs intestate shares among issue (EPTL 4-1.1) and a disposition to "issue" in an instrument executed on or after September 1, 1992, unless the instrument expresses a contrary intention (EPTL 2-1.2(b)).
- What does "per stirpes" mean in a New York trust?
- EPTL 1-2.14 divides the property into as many equal shares as there are surviving issue in the nearest generation that contains a survivor, plus deceased issue in that generation who left surviving issue; a deceased member's share passes to that member's issue in the same manner. That is the calculator's per capita with representation column — it does not always begin at the children's generation, as strict per stirpes does.
- 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, 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 New York law, not legal advice.