Per Stirpes in California: Why “Equal” May Not Mean What You Think

Two grandkids with special needs — needed more. Per stirpes gave them less. [Sailboat on a lake at night]

Steve loved his grandkids equally.

But equal isn’t always fair.

And what most people think “equal” means… isn’t what their trust actually does.

A Family That Didn’t Look Equal

Every summer, Steve watched his two daughters live very different lives.

Ann and her husband raised five children—two with significant special needs. Their lives revolved around therapy, care, and constant support.

Nicole had one child. Different lifestyle. Different financial reality.

Same family. Very different needs.

The Estate Plan Steve Thought Was Simple

Steve did what most people do.

He created a living trust and left everything to his children “equally.”

One phrase controlled the outcome:

Per stirpes.

He didn’t think much about it.

Most people don’t.

What Happened After the Tragedy

Ann passed away before Steve.

Now the trust had to distribute according to its terms.

Under per stirpes in California:

• The estate splits at the child level

• Nicole receives 50%

• Ann’s 50% is divided among her five children

Each of Ann’s children receives 10%.

Nicole’s child ultimately benefits from the full 50%.

That’s not a mistake.

That’s exactly how the law is designed to work.

Why Changing “Per Stirpes” May Not Change the Outcome

Here’s where people get confused.

California also allows “per capita at each generation.”

Sounds different.

It isn’t—at least not here.

When one child survives and another leaves descendants, both methods produce the same result:

• 50% to the surviving child

• 50% split among the deceased child’s children

There is no automatic equalization among grandchildren.

That only happens if:

• all children are deceased, or

• the trust specifically says so

The Real Issue Isn’t the Label—It’s the Plan

The problem isn’t “per stirpes.”

The problem is assuming:

“everything will work out fairly”

without actually defining what “fair” means.

Steve may have wanted:

• equal shares for each grandchild

• additional support for special needs grandchildren

• or some hybrid approach

But none of that happens automatically.

Special Needs Planning Changes Everything

Two of Ann’s children will need lifelong support.

A simple 10% distribution could:

• be quickly exhausted

• disqualify them from SSI

• disrupt Medi-Cal eligibility

A properly designed plan would include:

• a third-party Special Needs Trust

• structured distributions

• long-term protection of benefits

That requires intentional drafting—not default language.

What Steve Can Still Fix

Steve still has options.

He can:

• define how grandchildren inherit (instead of relying on defaults)

• create separate shares or formulas

• build in special needs protections

The key is clarity.

Not assumptions.

Review Your Trust Before It Matters

Most people sign their trust and never look at it again.

But life changes.

Families change.

The law stays the same—but your situation doesn’t.

If you haven’t reviewed your plan recently, it may not do what you think it does.

Schedule a consultation. Stay informed. Because family matters.