Future Interests

Question 1

Contingent Remainders

Answer 1

Created in an unborn or unascertained person OR
Subject to condition precedent (something must happen or not happen for remainderman to take)
“And if” ; “but if”
RAP applies
Ex. To A for life, then to B if B marries C; To A for life, then A’s surviving children;

Question 2

Vested Remainders

Answer 2

Vested if NOT contingent
Created in an already ascertained person
Not subject to condition precedent

Question 3

Indefeasibly vested remainder

Answer 3

Not subject to divestment or diminution; the remainder is certain to acquire interest in future estate; no strings or conditions attached.
Ex. To A for life, then to B
No RAP

Question 4

Vested remainder subject to total divestment

Answer 4

Subject to a condition subsequent; right to possession could be cut short because of condition subsequent;
Ex. To A for life, and on A’s death to B, but if B predeceases A, then to C
Because subject to a condition subsequent
No RAP

Question 5

Vested remainder subject to open

Answer 5

Remainder is vested in a class of persons; certain to become possessory, but subject to diminution because interest gets smaller each time a person joins the class.

Ex. To A for life, then to A’s children in equal shares

RAP applies as long as class remains open

The class closes in a class gift when some member of the class can call for distribution (rule of convenience)

Common open class violation of RAP = a gift to an open class conditioned on members surviving beyond age 21.

Question 6

Shifting Executory Interest

Answer 6

Always follows a defeasible fee; cuts short the interest of a third party.
RAP applies
Ex. To A for life, remainder to B and heirs; but if B predeceases A, then to C and his heirs (C has the shifting executory interest; note that B has a vested remainder subject to total divestment)

Question 7

Springing Executory Interest

Answer 7

Cuts short the interest of the grantor
RAP applies
Ex. To A if and when he becomes a doctor; To A for life, then two years after A’s death, to B

Question 8

Brightline Rule for RAP (always violates)

Answer 8

Executory interest with no time limit (To A for so long as no liquor is consumed on the premises, then to B)

• an executory interest following a defeasible fee is valid only if the condition is specific to the fee holder or expressly limited to perpetuities period.