Skip to main contentI. Future Interests: Overview
A. Basic Framework
- O (Original Grantor): The “architect” - creates the conveyance and cannot be changed
- A (Present Possessory Interest Holder): Has current possession, typically a life estate (96% of the time)
- B, C, D (Future Interest Holders): Have future interests in the property
B. Key Principle
- A remainder follows a life estate (natural expiration of prior estate)
- A remainder will NEVER follow a fee estate
- Natural expiration = when someone’s heart stops; when they die
II. Vested Remainders
A. Definition
A vested remainder is certain to become possessory upon the natural expiration of the prior estate.
B. Three Types of Vested Remainders
1. Indefeasibly Vested Remainder
Definition: A remainder where the holder is:
- Ascertainable (named and identifiable)
- NOT subject to any condition
- Will definitely get the property
- No one can take it away
Example: “O to A for life, then to B”
- O: Fee simple absolute (presumed)
- A: Present possessory interest in life estate (A is measuring life)
- B: Indefeasibly vested remainder in fee simple absolute
Variation: “O to A for life, then to B for life”
- O: Fee simple absolute
- A: Present possessory interest in life estate (A is measuring life)
- B: Indefeasibly vested remainder for life
- O: Reversion (because B won’t have it forever)
2. Vested Remainder Subject to Open (Subject to Partial Divestment)
Definition: A class gift where:
- More people can enter the class
- Current class members’ shares decrease as new members join
- Each member’s interest is “subject to open”
- Also called “subject to partial divestment”
Key Principle: Think of it like a pizza - the more people that enter the class, the less pizza (property) each person gets
Example: “O to A for life, then to B’s children” (B has 2 children: C and D)
- O: Fee simple absolute
- A: Present possessory interest in life estate (A is measuring life)
- C and D: Vested remainder subject to open in fee simple absolute
- As long as B is alive, B can have more children
- More children = smaller shares for each
Class Closing Rules:
- Class is open as long as B (parent) is alive
- Class closes when B dies
- Once class closes → becomes indefeasibly vested remainder
- If B has no children at all → contingent remainder
Important Distinction:
- “Then to B’s children” (with at least one child alive) = vested remainder subject to open
- “Then to B’s heirs” (while B is alive) = contingent remainder (heirs determined at death)
3. Vested Remainder Subject to Complete Divestment (Total Divestment)
Definition: A remainder where:
- Holder is ascertainable
- NOT subject to any condition initially
- BUT subject to being completely divested by someone else
- An individual (not a class) can lose 100% of their interest
Example: “O to A for life, then to B, unless C gets an A+ in real property, then to C”
- O: Fee simple absolute
- A: Present possessory interest in life estate (A is measuring life)
- B: Vested remainder subject to complete divestment in fee simple absolute
- C: Shifting executory interest in fee simple absolute
Analysis:
- B doesn’t have to do anything to get the property
- B is named and ascertainable
- BUT if C gets an A+, B loses everything (complete divestment)
- C’s interest is an executory interest (divests B)
III. Contingent Remainders
A. Definition
A contingent remainder is a future interest that is:
- Capable but NOT certain to become possessory
- Upon natural expiration of the prior estate
- Subject to either:
- A condition precedent that must be fulfilled, OR
- Held by an unascertainable person
Key Distinction: Vested remainder = certain; Contingent remainder = capable but NOT certain
B. Condition Precedent
Example: “O to A for life, then to B if B gets an A+ in real property”
- O: Fee simple absolute
- A: Present possessory interest in life estate (A is measuring life)
- B: Contingent remainder in fee simple absolute
- O: Reversion (because B might never get the A+)
Analysis:
- B is named and ascertainable
- BUT B must fulfill a condition (get A+)
- It’s possible but NOT certain B will get it
- If B never satisfies the condition → property reverts to O
Important: Anytime a conveyance ends with a contingent remainder, O always retains a reversion by operation of law
C. Unascertainable Person
Example: “O to A for life, then to the heirs of B” (B is alive)
- O: Fee simple absolute
- A: Present possessory interest in life estate (A is measuring life)
- B’s heirs: Contingent remainder in fee simple absolute
- O: Reversion
Key Rule: Heirs are determined at death
- You don’t know who your heirs are while alive
- Since B is alive, B’s heirs are unascertainable
- Therefore = contingent remainder
D. Alternative Contingent Remainder
Example: “O to A for life, then to B if C gets an A+ in property”
- B will get it, but the condition is on C (not B)
- B’s interest is contingent on something C must do
- If C satisfies the condition → B gets it
E. Life Estate Pur Autre Vie Variation
Example: “O to A for the life of B, then to C if C gets an A+ in property”
- O: Fee simple absolute
- A: Present possessory interest in life estate pur autre vie (B is measuring life)
- C: Contingent remainder in fee simple absolute
- O: Reversion
IV. Executory Interests
A. Definition
An executory interest:
- Is a future interest in a third party
- Divests (takes away from) the prior estate
- Does NOT wait for natural expiration
- Can follow a life OR fee estate
Key Distinction: Remainder = waits for natural expiration; Executory Interest = cuts short/divests
B. Types of Executory Interests
1. Shifting Executory Interest
- Divests (shifts from) another grantee (transfers from one grantee to another)
2. Springing Executory Interest
- Divests the grantor (springs from grantor to grantee)
C. Examples
Example 1: “O to A, so long as Blackacre is used for residential purposes, otherwise to B”
- O: Fee simple absolute (presumed)
- A: Present possessory interest in fee simple subject to executory limitation
- B: Executory interest in fee simple absolute
Important: This is NOT a restraint on alienation (only restrains use, not sale)
Example 2: “O to A, so long as Blackacre is used for residential purposes, otherwise to B for life”
- O: Fee simple absolute
- A: Present possessory interest in fee simple subject to executory limitation
- B: Executory interest for life
- O: Reversion (because B only has it for life; when B dies, it goes back to O)
Example 3: “O to A for life, then to B for life, but if B wins an Olympic gold medal, then to D”
- O: Fee simple absolute
- A: Present possessory interest in life estate (A is measuring life)
- B: Vested remainder subject to complete divestment for life
- D: Executory interest in fee simple absolute
Analysis:
- Notice language: “then to B… but if D wins”
- This means B gets it UNLESS D does something
- If it said “then to D if D wins” → D would have contingent remainder
- Language is very telling
What if D wins the gold medal while A is still alive?
- C’s interest is canceled out
- Becomes: “O to A for life, then to D”
- D has indefeasibly vested remainder
Tricky Example: “O to A for life, then to B, otherwise to C”
- This creates confusion
- B: Vested remainder subject to complete divestment in fee simple subject to executory limitation
- C: Executory interest in fee simple absolute
V. Interests Subject to Rule Against Perpetuities
Important Note
The following interests are subject to the Rule Against Perpetuities (RAP):
- Executory interests
- Contingent remainders
- Class gifts / Vested remainders subject to open
VI. Destructibility of Contingent Remainders
A. Common Law Doctrine
Rule: If a contingent remainder does not vest at the time of the prior estate’s natural expiration, it destructs (is destroyed).
Status: Common law only (minority of states may still follow)
B. Example
Common Law: “O to A for life, then to B if B gives A a proper funeral”
- O: Fee simple absolute
- A: Present possessory interest in life estate (A is measuring life)
- B: Contingent remainder in fee simple absolute
- O: Reversion
Scenario: A dies, but B hasn’t given A a proper funeral yet
Common Law Result:
- B’s interest destructs (destroyed)
- Conveyance becomes: “O to A for life” → “O” (fee simple absolute)
Modern Law Result:
- Property goes to O for a reasonable period of time
- Allows B to give A a proper funeral
- B’s interest transforms into an executory interest
- O has fee simple subject to executory limitation
C. Another Example
“O to A for life, then to B if B gets an A+ in real property”
Common Law:
- If A dies before B takes the final exam → B’s interest destructs
- Property goes to O in fee simple absolute
Modern Law:
- Property goes to O temporarily
- B gets reasonable time to take exam and get A+
- O: Fee simple subject to executory limitation
- B: Executory interest
VII. Rule in Shelley’s Case
A. Definition
When an instrument conveys to a grantee:
- An interest in life, AND
- A future interest in fee to that same grantee’s heirs
→ The two estates merge into a single fee simple absolute in the grantee
B. Example
Original: “O to A for life, then to A’s heirs”
Before applying rule:
- O: Fee simple absolute
- A: Present possessory interest in life estate (A is measuring life)
- A’s heirs: Contingent remainder in fee simple absolute
- O: Reversion
After applying Rule in Shelley’s Case:
- The life estate and the contingent remainder merge
- Result: “O to A” (A has fee simple absolute)
Rationale: When A dies, the interest will filter to A’s heirs anyway, so why not just give A fee simple absolute now?
C. Elements
- Grantee gets life estate
- Same grantee’s heirs get future interest in fee
- Merge via doctrine of merger
VIII. Doctrine of Worthier Title
A. Definition
When an instrument conveys:
- To a grantee in life, AND
- A future interest to the grantor’s heirs
→ The interest to grantor’s heirs merges with grantor’s reversion
B. Example
Original: “O to A for life, then to O’s heirs”
Before applying doctrine:
- O: Fee simple absolute (presumed)
- A: Present possessory interest in life estate (A is measuring life)
- O’s heirs: Contingent remainder in fee simple absolute
- O: Reversion
After applying Doctrine of Worthier Title:
- O’s heirs’ interest merges with O’s reversion
- Result: “O to A for life” (O retains reversion)
Rationale: No reason to have O’s heirs listed separately; just say O retains reversion
C. Distinction from Shelley’s Case
- Shelley’s Case: Grantee in life → grantee’s heirs
- Worthier Title: Grantee in life → grantor’s heirs
IX. Doctrine of Merger
A. Definition
The mechanism by which two estates held by the same person combine into a single estate
B. Application
- Used in conjunction with Rule in Shelley’s Case and Doctrine of Worthier Title
- Two interests merge/come together and transition into one interest
- Not taught as independent doctrine
- Mention “doctrine of merger” or “merge” in essay discussion
X. Rule Against Perpetuities (RAP)
A. The Rule Statement
Common Law Rule: “No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the time of its creation.”
B. Complexity and Context
Lucas v. Hamm (California, ~1978):
- California Supreme Court held this rule is so complicated that attorneys cannot be sued for malpractice for violating it
- UNLESS they hold themselves out as a specialist
- Shows the difficulty of this rule
Bar Exam History:
- Future interests NOT tested in essays for ~30 years
- Only present interests tested (fee simple determinable, condition subsequent, restraint on alienation, life estates)
- Future interests appeared on bar exam essay last year (first time in decades)
C. Which Interests Are Subject to RAP?
ALWAYS apply RAP when you see:
- Executory interests
- Contingent remainders
- Class gifts / Vested remainders subject to open
D. How RAP Operates
Key Principle: RAP voids out uncertainty
- Measured at time interest is created (not what actually happens)
- Tests possibilities, not actualities
- Voids interests that could vest too remotely (beyond a life in being + 21 years)
E. The “Plane Crash Test”
Method: Put O, A, and B on a plane → plane crashes → everyone dies
- Then ask: Where does the property go?
- If heirs could continue for more than 21 years → VOID
- If limited to someone’s life → VALID
F. RAP Applied to Executory Interests
Rule for Fee Interests
Any executory interest following a fee simple = ALWAYS VOID
Example 1 (VOID): “O to A, so long as Blackacre is used for residential purposes, otherwise to B”
- O: Fee simple absolute
- A: Fee simple subject to executory limitation
- B: Executory interest in fee simple absolute
RAP Analysis:
- How long could A use it for residential purposes? Forever
- How long could B’s interest float around? Forever
- B’s heirs could be waiting forever
- VOID due to remote vesting
Result after RAP:
- Cross out “otherwise to B”
- Becomes: “O to A, so long as Blackacre is used for residential purposes”
- O: Possibility of reverter (because B’s interest voided)
Example 2 (VOID): “O to A, on condition that Blackacre is used for residential purposes, otherwise to B”
- Same analysis as Example 1
- B’s interest is VOID
- Cross out “otherwise to B”
Special Issue: No “right of entry” language exists
- Some professors create automatic right of entry in O (to match O’s intent)
- But technically problematic
Example 3 (VOID - Special Rule): “O to A, but if Blackacre is used for anything other than residential purposes, then to B”
- O: Fee simple absolute
- A: Fee simple subject to executory limitation
- B: Executory interest in fee simple absolute
RAP Analysis:
- “But if” language is connected to “then to B”
- B’s interest is VOID (same remote vesting problem)
- BUT: Because “but if” and “then to B” are connected, the entire condition is void
Result after RAP:
- Cross out entire “but if… then to B” clause
- A has fee simple absolute (no conditions at all)
Rule for Life Interests
Executory interest following a life estate = VALID (if measuring life identified)
Example 4 (VALID): “O to A, so long as Blackacre is used for residential purposes, otherwise to B for life”
- O: Fee simple absolute
- A: Fee simple subject to executory limitation
- B: Executory interest for life
- O: Reversion (because B only has for life)
RAP Analysis:
- Plane crash test: O, A, B all die
- B’s interest only lasts for B’s life
- Maximum duration = someone’s life (not forever)
- VALID - B’s interest upheld
Example 5 (VALID): “O to A for life, then to B, so long as Blackacre is used for residential purposes”
- O: Fee simple absolute
- A: Present possessory interest in life estate (A is measuring life)
- B: Executory interest for life
- O: Reversion
RAP Analysis:
- Plane crash test: everyone dies
- Interest only lasts A’s life
- Not going on forever
- VALID
Example 6 (VALID): “O to my wife for life, then to B, so long as used for residential purposes”
- O: Fee simple absolute
- Wife: Life estate subject to executory limitation
- B: Executory interest in fee simple absolute
RAP Analysis:
- Interest measured by wife’s life
- Will vest or fail during wife’s life
- Not perpetual
- VALID
G. Key Pattern Recognition
VOID Patterns (executory interests):
- “O to A [fee], so long as [condition], otherwise to B”
- “O to A [fee], on condition [condition], otherwise to B”
- “O to A [fee], but if [condition], then to B” (entire condition void)
VALID Patterns (executory interests):
- Anything with “for life” limiting the interest
- Interest measured by an identifiable life in being
H. Summary: Why Life Estates = Valid
Maximum duration of interest = someone’s life
- Not going to survive their deaths
- Not floating around in perpetuity forever
- Only lasts for measuring life
- Therefore: VALID
I. What Happens When Interest is VOID?
If executory interest is void:
- Cross out the executory interest clause
- Re-analyze what remains
- O typically gets possibility of reverter or right of entry
- OR grantee gets fee simple absolute (if condition is connected/inseparable)
XI. Exam Tips and Important Testing Points
A. Common Mistakes
- Missing O’s reversion: Always remember when conveyance ends with contingent remainder or life estate, O retains reversion
- Confusing vested vs contingent: Vested = certain; Contingent = capable but not certain
- Forgetting RAP: ALWAYS discuss RAP when you see executory interests, contingent remainders, or class gifts
- Misidentifying heirs: Heirs determined at death (while alive = unascertainable)
B. Language Clues
Vested Remainder Subject to Complete Divestment:
- “Then to B, unless C…” or “Then to B, but if C…”
- Condition comes AFTER the grant to B
Contingent Remainder:
- “Then to B if B…”
- Condition comes WITH/BEFORE the grant
Executory Interest:
- “Otherwise to…”
- “But if…”
- Divests prior estate (doesn’t wait for natural expiration)
C. Modern vs Common Law
- Modern Law = “iPhone law” (when iPhone came out)
- Assume modern law unless told otherwise
- Common law assumes fee tail language
- Modern law: “O to A” = fee simple absolute
D. Always Identify First
- What does O have? (Start with fee simple absolute presumed)
- What does A have? (Present possessory interest)
- What does B have? (Future interest)
- Any other letters? (C, D, E…)
- Check validity (RAP, destructibility, merger rules)
E. Testing Frequency
- Vested remainders: Very common
- Contingent remainders: Common
- Executory interests: Common
- RAP: Increasingly tested (was on bar exam last year after 30-year gap)
- Rule in Shelley’s Case: Tested 3 times in 12 years
- Doctrine of Worthier Title: Tested 3 times in 12 years
XII. Key Definitions for Quick Reference
- Ascertainable: Named, identifiable person you could contact
- Natural expiration: When someone dies (heart stops for good)
- Vest: Interest becomes certain/fixed
- Divest: Take away/cut short prior estate
- Class gift: Conveyance to a group (e.g., “to B’s children”)
- Measuring life: The life that determines duration of life estate
- Life in being: Person alive at time interest created
- Remote vesting: Interest that could vest too far in the future (beyond life in being + 21 years)
- Fee simple absolute: Highest estate; no conditions; lasts forever
- Reversion: Future interest retained by grantor when grantee has less than fee simple absolute
- Possibility of reverter: Future interest in grantor following fee simple determinable
- Right of entry: Future interest in grantor following fee simple subject to condition subsequent
