Future Interests: Who Gets the Land Next

⚡ 10-Second Rule

A future interest is a place in line for land, and its name depends on who waits and what they must wait for.

🧒 ELI-10 Scene

One swing, and a line of kids waiting at the park. Ava is next in line, no strings attached. Her turn is guaranteed the moment the swing opens up. Ben is next only if he finishes his homework first. His turn might never come. A third spot goes to "whoever wins today's race" — nobody knows who that is yet. Then there's Cal, who holds a whistle. When the bell rings, Cal can yank the current kid off the swing early. And if the line runs out, the swing just goes back to the park owner. Every future interest is one of these: a sure turn, a maybe turn, a mystery turn, a yank, or a return.

⚖️ Actual Rule

Under common-law future-interest doctrine, as restated in the Restatement (First) of Property (1936) (paraphrased), classify by who holds the interest:

Retained by the grantor:

• Reversion — what remains after the grantor conveys a lesser estate (e.g., a life estate) without disposing of the rest.
• Possibility of reverter — follows a fee simple determinable; possession returns automatically on the event.
• Right of entry (power of termination) — follows a fee simple subject to condition subsequent; the grantor must elect to retake.

Created in a transferee:

• Remainder — becomes possessory, if at all, on the natural expiration of the prior estate (typically a life estate or term of years); a remainder never follows a defeasible fee and never cuts an estate short.
  • Vested remainder — held by an ascertained person with no condition precedent.
  • Contingent remainder — held by an unascertained person, or subject to a condition precedent, or both.
  • Vested remainder subject to open — a class gift in which at least one member has vested but the class can still grow.
  • Vested remainder subject to complete divestment — vested, but a condition subsequent could take it away before or after possession.
• Executory interest — a transferee's interest that takes effect by cutting short another interest: shifting if it divests a transferee, springing if it divests the grantor.

Classification method: classify each interest in sequence at the moment of creation, reading the granting language left to right.

ELI-10 translation: if it goes back to the giver, it is a reversion-family interest. If a stranger waits politely for the natural end, it is a remainder. If a stranger cuts in early, it is an executory interest.

🔍 Ask These Questions

1. Does the future interest stay with the grantor or go to a third party? (Does the land boomerang home, or move to someone new?)
2. If the grantor keeps it: what precedes it — a life estate, "so long as," or "but if"? (Life estate means reversion; time words mean reverter; "but if" means right of entry.)
3. If a third party takes: does the interest wait for the prior estate's natural end? (Polite waiting after "for life" makes it a remainder.)
4. Does the third party's interest instead cut an estate short? (Cutting in line makes it an executory interest — shifting off a grantee, springing off the grantor.)
5. For a remainder: is the taker ascertained, with no condition precedent? (A named, living kid with no homework requirement holds a vested remainder.)
6. If vested: can the class still grow, or can a later event snatch it away? (More siblings can join, so it is open; a "but if" after the gift means divestment.)

⚠️ Bar Trap

Exam language: Examiners test the line between a condition precedent and a condition subsequent by moving the same survivorship language around the punctuation. "To A for life, then to B if B survives A, otherwise to C" states a condition precedent — B takes a contingent remainder. "To A for life, then to B, but if B fails to survive A, to C" grants first and divests later — B takes a vested remainder subject to complete divestment, and C takes a shifting executory interest.

ELI-10: Read where the "if" sits. An "if" before the gift means B must earn the turn first. A "but if" after the gift means B has the turn but can lose it.

🧪 Question

Miguel conveyed his farm "to my sister Priya for life, then to Tomás and his heirs; but if Tomás predeceases Priya, then to Wren and her heirs." Priya, Tomás, and Wren are all alive. Miguel has made no other disposition of the farm.

Which of the following correctly states Tomás's interest?

(A) A contingent remainder, because Tomás must survive Priya to take possession. (B) A vested remainder subject to complete divestment. (C) A vested remainder subject to open. (D) A springing executory interest.

Answer: (B). Tomás is ascertained, and the granting clause "then to Tomás and his heirs" contains no condition precedent, so his remainder vested at creation. The separate "but if" clause is a condition subsequent that can divest him; Wren therefore holds a shifting executory interest.

💡 Why the Wrong Answers Are Wrong

• (A) treats the survivorship clause as a condition precedent, but it appears after the completed gift, making it a condition subsequent.
• (C) requires a class gift capable of growing, and "to Tomás and his heirs" names one individual, not a class.
• (D) fails twice: Tomás's interest follows the natural end of a life estate, and a springing interest must divest the grantor, not follow a life tenant.
• ELI-10: The misconception is thinking any "might not get it" interest is contingent. If the strings come after the gift, the gift already vested.