What the rule says
When a Pennsylvania resident dies without a will and the estate (or part of it) passes to descendants, the shares are calculated by representation under 20 Pa.C.S. § 2104. Pennsylvania applies the traditional "per stirpes" method, in which the estate is divided along family lines so that each branch of the family takes an equal share regardless of how many descendants are in that branch.
Under per stirpes:
1. The estate is divided into as many equal shares as there are surviving children of the decedent and deceased children who left descendants. 2. Each surviving child takes one share. 3. Each deceased child's share is divided equally among that child's own descendants, again by representation.
The method produces equal treatment across family branches but unequal treatment within generations. Two grandchildren whose parent is the decedent's only deceased child each inherit one-half of their parent's share. Three grandchildren whose parent is one of two deceased children share the deceased parent's share equally — they take less individually than the grandchildren in the first family branch.
How this differs from per capita at each generation
New York and several other states use a different method called "per capita at each generation," in which shares are pooled at each generation so that descendants in the same generation take equal amounts. Pennsylvania does not use this method.
Consider a Pennsylvanian who dies intestate with the descendants' share of the estate going to three lines: child A (alive, with two children), child B (deceased, with two children), and child C (deceased, with one child).
Pennsylvania (per stirpes):
- A takes one-third - B's two children share B's one-third (one-sixth each) - C's one child takes C's one-third
Note that B's two children each inherit less than C's one child, because the share is allocated to the deceased parent and divided among that parent's descendants.
Per capita at each generation (not Pennsylvania's method):
- A takes one-third - The remaining two-thirds is pooled among B's two children and C's one child — three children — and each takes two-ninths
The difference is meaningful when family branches have different numbers of descendants. Under per stirpes, a grandchild's share depends on how many siblings their deceased parent had, not on how many other grandchildren share the same generation.
What this means in practice
The per stirpes rule operates silently in most Pennsylvania intestacy cases. When all of the decedent's children survive, descendants take in equal shares regardless of method. The rule matters only when one or more children of the decedent have predeceased the decedent leaving descendants of their own.
A few practical points:
- Equal treatment across branches, not within generations. A Pennsylvanian who wants all grandchildren treated equally regardless of which child was their parent should not rely on intestacy. - The rule applies to all generations. If grandchildren also predecease the decedent leaving great-grandchildren, the per stirpes structure continues — each grandchild's share, if they have predeceased, is divided among their own descendants. - Per stirpes is the older and more familiar method. It traces directly to common law and remains the rule in many states. The Uniform Probate Code shifted to per capita at each generation in the 1990s, but Pennsylvania did not adopt that change.
What you can do about it
A Pennsylvania will allows the testator to specify any distribution method. With a will, a Pennsylvanian can:
- Direct per capita at each generation if equal treatment within each generation is the goal - Direct equal shares to specifically named descendants regardless of family line - Establish a trust with custom distribution rules that override either per stirpes or per capita defaults
The default per stirpes rule applies only when there is no will or when the will calls for distribution "by representation" without further specification. A will that explicitly directs a different method will be honored under Pennsylvania law.
Who this affects most
The per stirpes rule is most consequential for:
- Pennsylvania families where one or more children of the decedent predeceased the decedent leaving descendants - Multi-generational estates with unevenly distributed descendants across family branches - Testators who want grandchildren or great-grandchildren treated equally regardless of which family line they belong to
Per stirpes operates as a structural default. Most Pennsylvanians will never encounter the rule directly because their family structure is symmetric across branches. When asymmetry exists, however, the difference between per stirpes and other methods can produce significantly different inheritance amounts for individual descendants.