Per stirpes, per capita and representation, for Virginia 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 Virginia’s statutory default; a trust that wants it says so in 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 descendants; a deceased member’s share passes down to that member’s own descendants. Virginia’s statutory method for an intestate estate (Va. Code § 64.2-202(A)): the division begins at the closest degree of kinship that has a living heir or a deceased member with surviving descendants.

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. Not Virginia’s statutory default; a trust that wants it says so in its own words.

The same family tree can come out differently under different governing words — which is why the instrument controls. Virginia’s statute defines the method for an intestate estate (Va. Code § 64.2-202(A)) and reduces a half-blood collateral’s share by half (Va. Code § 64.2-202(B)) — a rule this page explains and the calculator does not apply; 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 is the whole estate unless the decedent left descendants who are not the spouse’s, in which case two-thirds passes to the descendants and one-third to the spouse (Va. Code § 64.2-200(A)(1)); the personal estate follows the real estate’s course (Va. Code § 64.2-201); Virginia has no community property of its own, and a surviving spouse’s elective share is a separate question (Va. Code § 64.2-308.3).

Frequently asked questions

How does Virginia divide an intestate estate among descendants?

Va. Code § 64.2-202(A) divides the estate, or each half portion of it where Va. Code § 64.2-200(A)(5) splits it between the two parental lines, into as many equal shares as there are heirs and distributees in the closest degree of kinship to the decedent and deceased persons in that same degree who left surviving descendants; one share passes to each living heir in that degree, and one share passes per stirpes to each deceased member's descendants. That is per capita with representation — the calculator's second column, labeled as Virginia's default.

What is Virginia's half-blood rule?

Collaterals of the half blood — relatives who share one parent with the decedent's ancestor rather than both — inherit only half as much as those of the whole blood (Va. Code § 64.2-202(B)). The rule applies to collateral kindred in an intestate estate; the page explains it and the calculator does not apply it. Whether a particular relative is a collateral of the half blood, and how a trust's own words treat that relative, are questions for a licensed Virginia attorney of your choosing.

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

The surviving spouse takes the whole intestate estate unless the decedent is survived by children or their descendants, one or more of whom are not children or descendants of the surviving spouse; in that case two-thirds of the estate passes to the decedent's children and their descendants and one-third to the surviving spouse (Va. Code § 64.2-200(A)(1)). The personal estate, after funeral expenses, charges of administration and debts and subject to the family allowance, exempt property and the homestead allowance, is distributed to the same persons in the same proportions (Va. Code § 64.2-201).

What is the elective share in Virginia?

The surviving spouse of a decedent who dies domiciled in Virginia may elect to take 50 percent of the value of the marital-property portion of the augmented estate (Va. Code § 64.2-308.3(A)); the homestead allowance, exempt property and family allowance are in addition to it ((B)). The augmented estate includes the decedent's non-probate transfers to others, among them property the decedent could revoke or withdraw (Va. Code § 64.2-308.6); the election is recorded within six months after the later of the will's probate or the administrator's qualification, and the complaint filed within six months after the election (Va. Code § 64.2-308.12). Whether a trust's assets form part of the augmented estate is a question for a licensed Virginia 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; Virginia's statute supplies the intestate method where no instrument speaks (Va. Code § 64.2-202). 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 Virginia law, not legal advice.