Predecease means either to die before another person does, or to fail to survive another person. It is significant within the field of estates and trusts law when someone who is intended to be included as a beneficiary in a will predeceases the person drafting that will, the testator. Most jurisdictions have adopted some form of antilapse statute in order to prevent a bequest from lapsing in this scenario.
However, in situations where an individual predeceases someone who eventually dies intestate, or without leaving a will, a probate court may apply other mechanisms to determine which descendants are to inherit from the estate in accordance with intestate succession statutes. In California, for example, Probate Code § 6400–6414 governs what occurs when a spouse predeceases a decedent and also governs intestate succession generally. Other mechanisms include estate divisions per stirpes, per capita by generation, and per capita with representation.
Pure per stirpes is a form of estate distribution that distributes equal shares of the estate to each branch of the family, even if a descendant branch member predeceases the decedent. A predeceased descendant’s issue would take the descendant’s share from the decedent and equally split it under this regime.
Per capita by generation is another method of distributing estates in which each generation with surviving heirs receives an equal share of the estate. For example, where a decedent has three children (A, B, C), where two children A and B are predeceased with one child each (A1, B1) and where the surviving child C has no issue, each descendant (C, A1, B1) would take equally from the estate.
Per capita with representation, also called modified per stirpes, is a distribution regime that divides estates according to which generation of heirs closest to the decedent is represented by surviving members. If the closest generation has predeceased class members who leave no issue, the surviving members of that generation take equally. If the closest generation’s predeceased class members do leave issue, any surviving members of that closest generation take first, then the remainder of these primary shares goes to the issue of the predeceased descendants to be split equally among them.
[Last updated in July of 2020 by the Wex Definitions Team]