Per stirpes, representation and per capita at each generation, for Ohio 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. Ohio’s statute of descent divides this way among an intestate’s children (R.C. 2105.06(A)), and many Ohio trusts use the 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 descendants; a deceased member’s share passes down to that member’s own descendants. Not Ohio’s intestate default; a trust may adopt it by its 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. Ohio reaches an equal division only where all the surviving descendants are of equal degree (R.C. 2105.12); a trust may adopt the rule by its words.

The same family tree can come out differently under different governing words — which is why the instrument controls. Ohio’s statute states the per stirpes division for an intestate estate (R.C. 2105.06); whether a particular trust’s “per stirpes”, “by representation” or “per capita” means one system or another is a question of the instrument’s own words, which a licensed Ohio attorney of your choosing can read with you.

Frequently asked questions

What does "per stirpes" mean under Ohio law?

For an intestate estate with no surviving spouse, R.C. 2105.06(A) passes the property to the children of the intestate or their lineal descendants, per stirpes — the division begins at the children's generation and a deceased child's share passes down that child's own line; where all the surviving descendants are of equal degree, they take in equal parts (R.C. 2105.12). The same pattern applies among brothers and sisters and among the grandparents' descendants (R.C. 2105.06(G), (I)).

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

The whole estate where every surviving child of the decedent is also the spouse's child, or where no child or descendant survives; with one child who is not the spouse's, the first $20,000 plus one-half; with more than one child, the first $60,000 plus one-third where the spouse is the parent of one but not all of them, or the first $20,000 plus one-third where the spouse is the parent of none (R.C. 2105.06(B) to (E)). A spouse may instead elect against a will within five months of the initial appointment of an executor or administrator, taking not more than one-half, or one-third where two or more children or their descendants survive (R.C. 2106.01(C), (E)).

Does Ohio define "per stirpes" in a trust?

R.C. 2105.06 states the per stirpes division for an intestate estate and R.C. 2105.12 the equal-degree rule; a trust instrument's own "per stirpes", "by representation" or "per capita" is read as the instrument's words, which may define the term or adopt the statute's pattern — a question for the instrument and, where it is unclear, a licensed Ohio 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 is a question for a licensed Ohio attorney of your choosing.

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 Ohio law, not legal advice.