Per stirpes and per capita are the two most common instructions Wisconsin wills and trusts use to divide property among a group of descendants, and the difference only shows up the moment one of those descendants dies before you do. If every one of your children survives you, both methods produce the exact same result: an equal share to each child. The split happens only when a child has already passed away, because that's when the document has to decide whether that child's share drops straight down to just their own kids, or gets reshuffled and spread evenly among everyone else in that generation instead. Wisconsin's probate code, Wis. Stat. § 854.04, actually defines four separate distribution methods, not two, and most people drafting a will or trust have never heard of the other two until the moment it matters. This guide walks through what each one actually does, with real numbers, so you can tell your attorney exactly which outcome you want instead of guessing from the Latin.
What "per stirpes" actually means under Wisconsin law
Per stirpes is Latin for "by the roots" or "by the branch," and that's the right way to picture it: property is divided into one equal share for each branch of the family, at the children's generation, whether or not that child is still alive to take it. Under Wis. Stat. § 854.04(2), if the designated person (say, you) had three children, the estate splits into three equal shares, one per child, full stop, regardless of how many of them are actually still living. A child who survives you takes their one-third outright. A child who died before you, but left children of their own, has their one-third pass down to those grandchildren, split evenly among just that branch. A child who died before you with no surviving descendants simply loses that branch's share, and it's reallocated among the other branches under the statute's default rules, or exactly as your document separately specifies.
The defining feature of classic per stirpes is that the division always happens at the children's level, even in a generation with zero living children. If all three of your children predecease you, their respective branches of grandchildren still take exactly the one-third share their parent would have taken, not an equal per-person split across every grandchild combined. That detail is what trips people up, and it's exactly what the next two methods exist to fix.
What "per capita" means, and why it's rarely what people actually want
Per capita is Latin for "by the head," and under Wis. Stat. § 854.04(6) it means something much simpler, and much less commonly what a family actually wants: the property is divided into as many equal shares as there are surviving members of the named group, full stop, with no regard for which branch anyone belongs to. If you leave your estate "to my grandchildren, per capita," and you have seven surviving grandchildren spread unevenly across your three children's families, every single one of those seven gets exactly one-seventh, regardless of whether one branch has five grandchildren and another has just one.
Plain per capita is almost never what someone actually wants when the instruction is really about children and grandchildren together, because it erases the idea of a "branch" entirely. It's most useful, and most commonly used, for truly flat groups, like "to my living siblings, per capita," where there's no generational structure to represent in the first place. For descendants across multiple generations, attorneys almost always reach for one of the two blended methods below instead.
The two methods that actually blend branches and generations
Wisconsin's statute also defines modified per stirpes and per capita at each generation, and these are the two methods that solve the problem classic per stirpes and plain per capita each get wrong in opposite directions.
Modified per stirpes, under Wis. Stat. § 854.04(3), starts the division not automatically at the children's generation, but at whichever generation nearest to you actually has at least one living member. If all three of your children have died before you, but you have seven living grandchildren, modified per stirpes divides the estate into shares at the grandchildren's generation, not the children's, with one share for each living grandchild and each deceased grandchild who left surviving issue of their own. From that starting generation downward, it behaves exactly like classic per stirpes, following each branch down as needed.
Per capita at each generation, under Wis. Stat. § 854.04(4), starts the same way, at the nearest generation with at least one survivor, but then handles the deceased members' shares differently. Instead of each deceased person's share following their own line of descendants in isolation, all the shares that belong to deceased members at that generation get pooled together first, then redistributed equally among all of their collective descendants, treated as one combined group rather than as separate branches. This is the method that produces a genuinely equal outcome for every descendant at the same generational distance from you, regardless of which parent or grandparent they descend from, and it's the method most estate planning attorneys now recommend as the fairest default for a trust or will.
A worked example: the same $900,000 estate, four different results
Numbers make this easier to see than Latin does. Say you have three children, Anna, Ben, and Carl. Anna is alive. Ben died before you, leaving two children (your grandchildren) behind. Carl also died before you, leaving just one child. Your estate is worth $900,000, split "to my issue" under each of the four methods:
- Per stirpes: The estate splits into three $300,000 shares at the children's level, one per child regardless of survival. Anna takes her $300,000 outright. Ben's $300,000 splits evenly between his two children, $150,000 each. Carl's $300,000 passes whole to his one surviving child.
- Modified per stirpes: Because Anna, a child, is still alive, the division starts at the children's generation exactly like classic per stirpes above, producing the identical result in this example. Modified per stirpes only diverges from classic per stirpes when every member of the nearest generation has died.
- Per capita at each generation: Anna still takes her $300,000 share outright at the children's level. But Ben's and Carl's combined $600,000 is pooled together and then split evenly among their three combined children, two of Ben's and one of Carl's, $200,000 each, instead of following each parent's line in isolation.
- Per capita: All descendants named in the gift, if the document is written to flow all the way down to the grandchildren as one flat group, Anna plus the three grandchildren, take an equal one-fourth each, $225,000, erasing the fact that Anna is a child and the other three are grandchildren entirely. In practice, a "to my issue, per capita" gift to a mixed group of children and grandchildren is unusual and often unintended; most attorneys catch this and ask which generation the client actually means.
Ben's two children end up with $150,000 each under per stirpes, but $200,000 each under per capita at each generation, purely because Carl happened to have one child instead of two. That single fact, how many kids each of your children happens to have, is the entire practical difference between these methods, and it's exactly why the choice deserves a real conversation instead of defaulting to whatever word a template happens to use.
| Method | Division starts at | Deceased person's share goes to | Equal outcome for same-generation descendants? |
|---|---|---|---|
| Per stirpes | Children's generation, always | Their own descendants only, by branch | No, depends on branch size |
| Modified per stirpes | Nearest generation with a survivor | Their own descendants only, by branch | No, depends on branch size |
| Per capita at each generation | Nearest generation with a survivor | Pooled, then split evenly across all descendants at the next generation | Yes, within that generation |
| Per capita | Wherever the named group is defined | N/A, only living members named in the group take at all | Yes, but ignores branches entirely |
Wisconsin's default rule if your will or trust doesn't say
If you die without a will, Wisconsin's intestate succession statute, Wis. Stat. § 852.01(1)(b), sends the share of your estate that doesn't go to your spouse to your issue per stirpes, by default, with the mechanics governed by the same § 854.04 definitions above. That's worth knowing because Wisconsin kept classic per stirpes as its intestate default even as many other states moved their default to per capita at each generation under the Uniform Probate Code. If you'd rather your family split unevenly sized branches the modern way, equal shares for equal-generation grandchildren, you need a will or trust that says so; intestacy alone won't get you there.
A written will or trust can specify any of the four methods, and under § 854.04(1), if your document just says "per stirpes" or "by representation" without further definition, the statute's own definition controls, which is classic per stirpes. If your drafting attorney doesn't ask which of the four outcomes you actually want and simply drops in boilerplate language, you may end up with a result you'd never have chosen if you'd seen the numbers above first. This is exactly the kind of gap that a revocable living trust, built around your specific family structure rather than a generic form, is meant to close; our revocable living trust in Wisconsin post covers how that document gets built around your actual family, not a template's assumptions.
Why this choice matters more for blended families and unequal branches
The gap between per stirpes and per capita at each generation is largest exactly where families are most likely to disagree about what's fair: blended families, families where one child had many kids and another had none, and families where a child died young leaving a single grandchild to inherit an entire branch's share alone. A grandchild who is an only child inherits their entire parent's branch under per stirpes, which can be two, three, or more times what a cousin from a larger branch receives per person under the same gift. Neither outcome is wrong on its own; they're just different philosophies about whether "fair" means fair to each branch of the family or fair to each individual descendant. Our blended family estate planning post covers the related question of how to balance a current spouse against children from an earlier relationship, which often comes up in the same conversation as this one.
This also matters directly for anyone naming guardians and inheritance structures for minor grandchildren, since the dollar amount flowing to each branch changes depending on the method chosen, which in turn can affect how much goes into a guardianship or a minor's trust for any one grandchild. Our guardianship for minor children post covers the separate but related question of who raises a minor beneficiary, as distinct from how much they inherit.
How to make sure your document says what you actually mean
The single biggest mistake in this area isn't choosing the wrong method, it's not realizing a choice is being made at all. "To my children, and if any of them predecease me, to their issue" sounds complete, but it doesn't specify which of the four statutory methods controls once more than one branch is involved. A properly drafted trust should name the method explicitly, by its statutory term, not just gesture at the general idea of "passing it down to their kids." It should also be drafted with your actual family tree in mind: if every one of your children has, or is likely to have, roughly the same number of kids, the four methods will rarely produce meaningfully different results and the choice matters less. If your family's branches are visibly uneven already, the choice deserves real attention before you sign anything.
This is also a case where a funded, trust-based plan has a real advantage over a will alone. A will's per stirpes or per capita language only gets interpreted once, at death, by a probate court applying the statute to whatever the document says. A revocable living trust can be reviewed and adjusted with your attorney as your family actually grows and changes, well before it matters, rather than locking in assumptions about branch sizes that may look very different by the time you die. Our trust vs. will post covers that broader comparison in more depth. Because trust administration also happens privately and keeps your estate out of the probate court process entirely, see our Avoiding Probate page, any ambiguity in a per stirpes or per capita clause gets resolved by your successor trustee working from the trust's own terms, not litigated in open court between branches of the family who disagree about what "by representation" was supposed to mean.
Common mistakes with per stirpes and per capita clauses
A few patterns show up again and again in documents that weren't drafted with this issue in mind. The first is using "per stirpes" and "per capita" as if they were interchangeable synonyms for "to my descendants," when they produce meaningfully different dollar outcomes the moment any branch is uneven. The second is naming a method for the primary gift but forgetting to specify what happens if an entire generation predeceases the person, which is exactly when classic per stirpes and modified per stirpes diverge from each other. The third is assuming "per capita," on its own, automatically means a fair split across grandchildren, when a literal per capita gift written to flow down to a mixed group of children and grandchildren together can produce the flattened, generation-blind result shown in the worked example above, almost certainly not what the person intended. The fourth, and most expensive, is leaving the language ambiguous enough that two branches of the family end up in probate court arguing over which method the document actually meant, a dispute that per-generation clarity in the drafting would have made impossible to raise in the first place.
Common questions about per stirpes and per capita in Wisconsin
What does "per stirpes" mean in a Wisconsin will or trust?
It means property divides into one equal share for each child of the person named, at the children's generation, regardless of whether that child is still living. A deceased child's share passes down to that child's own descendants, divided only within that branch, under Wis. Stat. § 854.04(2).
What's the difference between per stirpes and per capita at each generation?
Per stirpes keeps each deceased person's share within their own branch, passing it straight down to their descendants. Per capita at each generation pools together the shares of everyone who died at a given generation and splits that pooled amount evenly among all of their combined descendants, producing an equal result for everyone at the same generational distance regardless of branch size.
Does Wisconsin use per stirpes or per capita by default if I don't have a will?
Per stirpes. Wisconsin's intestate succession statute, Wis. Stat. § 852.01(1)(b), distributes the share of an estate that doesn't pass to a spouse to the decedent's issue per stirpes, with the mechanics defined in Wis. Stat. § 854.04.
Can I choose per capita at each generation instead of per stirpes in my own will or trust?
Yes. A will or trust can specify any of the four methods Wisconsin law defines, per stirpes, modified per stirpes, per capita at each generation, or per capita, and your document's own language controls over the statutory default, as long as it clearly identifies the method.
Why would per stirpes and per capita at each generation produce different dollar amounts for grandchildren?
Because the two methods treat branch size differently. If one of your children had two kids and another had one, per stirpes gives that one grandchild their entire parent's full one-third share, while per capita at each generation pools both branches' shares together and splits them evenly across all three grandchildren instead.
What happens under per stirpes if all of my children die before me?
Under classic per stirpes, the division still happens at the children's generation even though none of them survived, so each child's full share passes down to that child's own descendants by branch. Modified per stirpes, by contrast, would shift the starting point down to the grandchildren's generation instead, since that's the nearest generation with a living member.
Is per capita ever the right choice for a Wisconsin estate plan?
It can be, but mainly for truly flat groups with no generational structure, like a gift to a group of siblings or cousins who are all the same generational distance from the person making the gift. For a gift meant to flow down through children and grandchildren together, per capita at each generation almost always better matches what people actually intend than plain per capita does.
Per stirpes and per capita aren't just Latin vocabulary, they're a real choice about how unevenly sized branches of your family split what you leave behind, and the right answer depends entirely on your own family's shape. Schedule a free consultation and we'll walk through your family tree specifically, explain exactly how each method would play out in dollars for your own children and grandchildren, and build the trust language to match what you actually mean, in plain English, with a flat-fee quote before you decide anything.