Distribution by representation is the rule that keeps a deceased heir’s share of an inheritance inside their own family line: instead of the share disappearing or being redistributed among the surviving heirs at that level, it drops down to the deceased heir’s children. Three different methods carry out that idea, and they can produce very different results in the same family. Strict per stirpes, per capita with representation, and per capita at each generation each use their own starting point and their own math, and which one applies depends on the language of the will or trust or, if there is no will, on the intestacy statute in the decedent’s state.
When Representation Rules Apply
Two situations trigger these rules. The first is intestacy. Every state has a default statute for people who die without a valid will, and those statutes include a representation mechanism so grandchildren can step into the place of a parent who died before the grandparent.
The second is a will or trust that uses distribution language like “per stirpes” or “by representation.” If a trust says “to my children, per stirpes,” and one child has already died, the document itself calls the representation rules into action rather than intestacy law.
One boundary worth noting: anti-lapse statutes are a related but separate safety net. When a will leaves a gift to a specific beneficiary who dies first, many states redirect the gift to that beneficiary’s descendants, but only if the beneficiary was a close relative like a child or sibling. Gifts to friends or distant relatives typically fall into the residuary estate instead. Anti-lapse rules patch wills; representation rules do the heavy lifting in intestacy and in trust distribution language.
Strict Per Stirpes
Strict per stirpes is the oldest method. It starts dividing at the first generation of descendants—the decedent’s children—whether any of them are still alive or not. Each child is a “root” or branch, and the estate splits into equal shares based on the number of roots. If a child predeceased the parent, that child’s share drops straight down to their own children, split equally.
A $900,000 estate with three children creates three $300,000 branches. If one child has died leaving two grandchildren, those two grandchildren inherit $150,000 each. The other two living children still take $300,000 apiece. The grandchildren’s take is locked to what their parent would have received, no matter how many of them there are.
The method gets contentious when all the children are gone. Say all three children have died: Child A left one grandchild, Child B left two, and Child C left four. Under strict per stirpes, the division still happens at the children’s level, so there are still three equal $300,000 shares. Child A’s only grandchild takes the full $300,000. Child B’s two grandchildren split $300,000 and get $150,000 each. Child C’s four grandchildren split $300,000 and get $75,000 apiece. Same generation, same relationship to the decedent, dramatically different amounts.
Per Capita With Representation
Per capita with representation, sometimes called modified per stirpes, moves the starting point. It looks for the first generation that has at least one living member and begins the division there. If any child is alive, the math is identical to strict per stirpes: shares are set at the children’s level, and deceased children’s portions flow to their descendants.
The difference shows up when an entire generation is gone. Using the same $900,000 estate where all three children have died and there are seven grandchildren in total, this method skips the empty children’s level and divides the estate equally among the seven grandchildren. Each receives roughly $128,571. The disparity that strict per stirpes creates between cousins in unequal-sized branches disappears at that point. Once the equal shares are set at the grandchild level, though, any further drop-down to great-grandchildren goes back to a branch-based approach within each grandchild’s line.
Per Capita at Each Generation
Per capita at each generation, the method codified in the Uniform Probate Code, pushes the fairness principle furthest. The logic is often summarized as “equally near, equally dear”: every descendant at the same generational level receives the same amount.
Like per capita with representation, it starts by creating equal shares at the first generation with a living member. Living members at that level each take one share. The shares that would have gone to deceased members at that level are then pooled together, and the pool is divided equally among all descendants in the next generation who have a deceased parent above them. The pooling and redividing repeats at each subsequent generation.
Take a $900,000 estate where one of three children survives. Three $300,000 shares are created. The surviving child takes $300,000. The two shares belonging to the deceased children—$600,000 in total—go into a single pool. If those two deceased children left four grandchildren between them (one grandchild from one line, three from the other), each of the four grandchildren receives $150,000 from the pool. Under strict per stirpes, that lone grandchild would have taken a full $300,000 while the three cousins split $300,000 into $100,000 shares. Per capita at each generation deliberately closes that gap.
A growing number of states have adopted this method, and it is the default under the Uniform Probate Code. If you don’t know which method your state applies, the intestacy statute is worth checking, especially if branches in your family are unevenly sized.
Who Counts as a Descendant
Before any method can run its numbers, the probate court has to confirm who qualifies as a descendant. The rules are more nuanced than most people expect.
Biological children and legally adopted children stand on equal footing. An adopted child has the same right to represent a deceased parent as a biological child. Children born after the decedent’s death also qualify, provided they were conceived before the death occurred.1Legal Information Institute. Posthumous Child
A child born outside of marriage inherits from their biological mother without additional proof in virtually every state. Inheriting from a biological father is harder. Most states require established paternity through a court order, a voluntary acknowledgment signed during the father’s lifetime, or genetic testing. Courts have increasingly allowed posthumous DNA testing, with evidentiary standards ranging from a preponderance of the evidence to clear and convincing evidence depending on the state.
Half-siblings are treated inconsistently across states. Some make no distinction between half and full siblings. Others give half-blood relatives only half the share a full-blood relative would receive, and a few postpone half-blood heirs entirely in favor of full-blood relatives of the same degree.
Stepchildren and foster children do not inherit by representation unless they have been legally adopted. Without a formal adoption decree they fall outside the statutory definition of “descendant.” A will or trust can name them as beneficiaries, but they have no automatic right to step into a deceased parent’s inheritance line.
Proving Your Right to Inherit
Being entitled to a share and proving it to a probate court are two different jobs. Courts want documentary evidence for every link in the chain of descent. Expect to gather:
- Death certificates for the decedent and for every predeceased person in your line, showing that the inheritance right shifted downward.
- Birth certificates for yourself and for every person connecting you to the decedent, establishing the parent-child relationships.
- Adoption decrees, if any link in the chain involves a legal adoption.
- Paternity orders, voluntary acknowledgments, or DNA evidence if you inherit through a father who was not married to your mother.
Assembling these records before the estate enters probate saves significant time. A single missing document can stall distribution for months.
Disclaiming a Share to Push It Down a Generation
An heir who does not want their share can file a qualified disclaimer, a formal refusal of the inheritance. When done correctly, the disclaimed assets are treated as if they had never been transferred to the disclaiming person.2GovInfo. 26 CFR 25.2518-1 – Qualified Disclaimers of Property; In General The disclaimed share then passes to whoever is next in line, often the disclaimant’s own children under the applicable representation rules, without triggering gift tax.
The requirements are strict. The disclaimer must be in writing and delivered within nine months of the decedent’s death, or within nine months of the disclaimant turning 21 if they are a minor.3eCFR. 26 CFR 25.2518-2 – Requirements for a Qualified Disclaimer The disclaimant cannot have accepted the property or any of its benefits before disclaiming, and cannot direct where the property goes. Missing the nine-month window or accepting any benefit before filing turns the “disclaimer” into a taxable gift from the would-be disclaimant to whoever ends up with the property.
A well-timed disclaimer can shift assets down a generation on purpose. A surviving child who does not need the money can disclaim so the assets flow to their own children under the applicable representation method.
The Predeceased Parent Rule and GST Tax
When grandchildren inherit by representation because their parent died before the grandparent, a federal tax rule keeps them from being hit with the generation-skipping transfer (GST) tax. The GST tax normally applies when assets skip a generation, such as going directly from grandparent to grandchild. When the intervening parent is already dead at the time of the transfer, the grandchild is bumped up one generation for tax purposes and is treated as if they were the transferor’s child.4Office of the Law Revision Counsel. 26 USC 2651 – Generation Assignment The adjustment is automatic; no election or filing is required. It also extends to the grandchild’s own descendants, so great-grandchildren inheriting by further representation are reassigned as well.
For 2026, the federal estate and gift tax basic exclusion amount is $15,000,000 per person, following the increase enacted by the One, Big, Beautiful Bill signed into law on July 4, 2025.5Internal Revenue Service. What’s New – Estate and Gift Tax The GST exemption is tied to the same figure. Most families inheriting by representation will not run into the GST tax because the estate falls under the exemption. For larger estates, the predeceased parent rule is the reason grandchildren inheriting through a deceased parent do not face a tax layer that grandchildren receiving direct bequests from a living-parent family might.