What the rule says
When a New York resident dies without a will and the estate (or part of it) passes to descendants, the descendants' shares are calculated using a method called "per capita at each generation." New York's Estates, Powers and Trusts Law § 1-2.16 specifies this method for intestate distributions.
Under per capita at each generation, the estate is divided as follows:
1. The estate is first divided at the closest generation in which any descendant survives. 2. The number of shares equals the number of surviving descendants in that generation, plus the number of deceased descendants in that generation who left descendants of their own who are still living. 3. Shares belonging to deceased members of the closest surviving generation are then combined and divided equally among their living descendants in the next generation.
The method differs from the older "per stirpes" approach used in many other states. Per stirpes follows family lines down: each branch of the family takes the same share regardless of how many people are in that branch. Per capita at each generation pools the shares at each level so that descendants in the same generation take equal amounts.
How the difference plays out
Consider a New Yorker who dies intestate with one-half of the estate passing to descendants. The decedent had three children — A, B, and C. A is alive and has two children. B died before the decedent leaving two children. C died before the decedent leaving one child.
Under per stirpes (which New York does not use):
- A takes one-third of the descendants' share - B's two children together take one-third (one-sixth each) - C's one child takes one-third
Under per capita at each generation (New York's method):
- A takes one-third - The remaining two-thirds is pooled and divided equally among B's and C's surviving children — three children in total - Each of those three grandchildren takes two-ninths
The pooling at the grandchild level produces different outcomes. Under per capita at each generation, B's two children take a smaller share than they would under per stirpes (two-ninths each instead of one-sixth each), and C's one child takes a smaller share than they would under per stirpes (two-ninths instead of one-third).
The method matters most when descendants are unevenly distributed across family branches — a situation that arises whenever some children of the decedent predecease them leaving children of their own.
Why this rule exists
New York adopted per capita at each generation to produce more equal treatment within each generation. Per stirpes can result in cousins receiving very different inheritances based solely on how many siblings their parent had. Per capita at each generation flattens this disparity by pooling shares at each generation.
The Uniform Probate Code adopted per capita at each generation in the 1990s, and several states have adopted it since. New York's adoption is consolidated in EPTL § 1-2.16 and applies to all intestate distributions where the statute calls for distribution "by representation."
What you can do about it
A New York will allows the testator to specify any distribution method — per capita at each generation, per stirpes, equal shares to surviving descendants regardless of generation, or any other allocation. The default per capita at each generation rule applies only when there is no will or when the will explicitly invokes "by representation" without specifying a method.
For New Yorkers who want a specific outcome:
- A will can name beneficiaries individually, eliminating the need for any distribution method to apply. - A will can specify per stirpes if the testator prefers that older method. New York will recognize and apply per stirpes if the will explicitly directs it. - A trust can define its own distribution rules independent of state-default methods.
Who this affects most
The per-capita-at-each-generation rule is most consequential for:
- Families where one or more children of the decedent predeceased the decedent leaving issue - Multi-generational estates where grandchildren and great-grandchildren of the decedent may inherit - Testators whose preferences differ from per capita at each generation — typically those who want certain branches of the family to take more or less than the statutory pooling produces
The rule operates silently in the background of intestate distributions. Most New Yorkers will never need to think about it. When it matters, however — when family lines are uneven and descendants are spread across multiple generations — the difference between per capita at each generation and other methods can amount to thousands or tens of thousands of dollars per beneficiary.