Per Capita at Each Generation
When a statute or governing instrument calls for distribution "by representation" or "per capita at each generation," Arizona uses a pooling approach. The property is divided into equal shares at the generation nearest to the designated ancestor that has at least one living descendant. Each surviving member in that generation gets one share. Any remaining shares from deceased members are combined and divided the same way among their surviving descendants.
If an applicable statute or a governing instrument calls for property to be distributed by representation or per capita at each generation, the property is divided into as many equal shares as there are surviving descendants in the generation nearest to the designated ancestor that contains one or more surviving descendants and deceased descendants in the same generation who left any surviving descendants.
A.R.S. § 14-2709(A)This method tends to treat descendants in the same generation more equally. Cousins whose parents are deceased receive the same share as cousins whose parents are still living, because the remaining shares are pooled before being redistributed.
Per Stirpes: A Different Calculation
Per stirpes works differently. The property is divided at the first generation below the designated ancestor, regardless of whether anyone in that generation is still alive. Each surviving child gets one share. A deceased child's share passes down to their own descendants, subdividing at each level.
If a governing instrument calls for property to be distributed per stirpes, the property is divided into as many equal shares as there are surviving children of the designated ancestor and deceased children who left surviving descendants. Each surviving child is allocated one share. The share of each deceased child with surviving descendants is divided in the same manner.
A.R.S. § 14-2709(B)The practical difference shows up most clearly in families where some branches have more descendants than others. Per stirpes preserves the family branch structure, while per capita at each generation focuses on equal treatment within the same generation. This statute applies to governing instruments executed after December 31, 1994.
