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).