Key Takeaways
- The RAP requires that interests must vest or fail within 21 years after a life in being at creation
- RAP applies to contingent remainders, executory interests, vested remainders subject to open, and certain options
- RAP does NOT apply to reversions, possibilities of reverter, powers of termination, or indefeasibly vested remainders
- The 'what might happen' test invalidates interests if there's any possibility of remote vesting
- Many states have adopted the Uniform Statutory RAP with a 90-year wait-and-see period
Rule Against Perpetuities
The Rule Against Perpetuities (RAP) is one of the most tested—and most challenging—topics on the bar exam. It limits the duration of certain future interests to prevent property from being tied up indefinitely.
The Classic Statement
"No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest."
Breaking It Down
- "Must vest, if at all": The interest must either become possessory or fail within the perpetuities period
- "21 years after": The measuring period
- "Life in being": A person alive at the time the interest was created
- "At the creation": For deeds, when delivered; for wills, at testator's death
Interests Subject to RAP
| Subject to RAP | NOT Subject to RAP |
|---|---|
| Contingent remainders | Reversions |
| Executory interests | Possibilities of reverter |
| Vested remainders subject to open | Powers of termination |
| Options to purchase (not in lease) | Indefeasibly vested remainders |
| Rights of first refusal | Charitable trusts |
| Powers of appointment | Present possessory estates |
Analysis Framework
Step 1: Identify Interests Subject to RAP
Look for contingent remainders, executory interests, and class gifts.
Step 2: Identify Measuring Lives
- Must be a person alive at creation
- Must be connected to the vesting of the interest
- Cannot be a class unless the class is closed
Step 3: Apply the "What Might Happen" Test
Ask: Is there any scenario, however unlikely, where the interest might vest more than 21 years after all lives in being have died?
Step 4: Strike Void Interests
If the interest violates RAP, it is void from the beginning. The remaining language is interpreted without the void portion.
Common Traps
The Fertile Octogenarian
Under the common law presumption, all persons are presumed capable of having children regardless of age.
Example: "to A for life, then to A's children for their lives, then to A's grandchildren."
If A is 90 years old with one adult child, the gift to grandchildren still fails RAP. Why? A could theoretically have another child (born after the grant), that child's children would be grandchildren, and they could be born more than 21 years after A and all currently living persons die.
The Unborn Widow
The phrase "A's widow" or "A's spouse" refers to whoever is married to A at A's death—who may not yet be born.
Example: "to A for life, then to A's widow for life, then to A's children surviving A's widow."
A's widow might be someone not yet born at the creation of the interest. If so, the gift to children surviving A's widow violates RAP.
The Slothful Executor
Example: "to A when my estate is settled."
Estates can sometimes take more than 21 years to settle. This violates RAP unless modified by statute.
Saving Constructions
If language is ambiguous, courts may interpret it to save an interest from RAP:
- Age contingencies over 21: "to A's children who reach 25" may be read as "who reach 21"
- Class closing: Apply the Rule of Convenience to close classes earlier
- Reduction of age: Courts may reduce ages to 21 to save gifts
Special Applications
Executory Interests Following Defeasible Fees
Example: "to School District so long as used for education, but if not, to Library."
- School District has a fee simple subject to executory limitation
- Library has a shifting executory interest
- The condition (not used for education) might occur 500 years from now
- Library's interest violates RAP and is void
- Result: School District has fee simple determinable; grantor has possibility of reverter
Charity-to-Charity Exception
When both the grantor of the defeasible fee and the holder of the executory interest are qualified charitable organizations, the executory interest is exempt from RAP.
Example: "to Red Cross so long as used for charitable purposes, then to Hospital" is valid.
Modern Reforms: USRAP
The Uniform Statutory Rule Against Perpetuities (USRAP) has been adopted in many jurisdictions. Key features:
- Wait-and-See Period: Courts wait up to 90 years to see if an interest actually vests
- Reformation: If interest hasn't vested within 90 years, court may reform it
- Alternative: Interest is valid if it either:
- Satisfies common law RAP, OR
- Actually vests within 90 years
Some states have abolished RAP entirely (e.g., abolishing it for trusts to allow perpetual dynasty trusts).
Powers of Appointment and RAP
A power of appointment is authority to designate who receives property.
General Power of Appointment
Holder can appoint to anyone, including themselves. Treated as equivalent to ownership.
RAP Test: The power must be EXERCISABLE within the perpetuities period (need not actually be exercised).
Special (Limited) Power of Appointment
Holder can only appoint to a limited class (excluding themselves).
RAP Test: The power must be EXERCISED so that interests VEST within the perpetuities period.
| Power Type | Perpetuities Period Runs From |
|---|---|
| Presently exercisable | Creation of the power |
| Testamentary | Exercise of the power (holder's death) |
Class Gifts Under RAP
"Bad-as-to-One, Bad-as-to-All" Rule
If ANY class member's interest might vest too remotely, the ENTIRE class gift fails.
Example: "to A for life, then to A's grandchildren who reach 21."
- A has grandchildren aged 25 and 5
- A could have another child → that child could have grandchildren
- Those grandchildren might reach 21 too late
- ENTIRE gift fails—even the 25-year-old's share
Gift to Subclass Exception
When structured as separate gifts to subclasses, each subclass is tested independently.
Example: "to A's children for life, then upon each child's death, to that child's children."
- Gifts to children of A's children alive at creation: VALID
- Gifts to children of A's afterborn children: VOID (but doesn't void the valid gifts)
Options to Purchase - Tenant Exception
Options are subject to RAP, EXCEPT: Options held by a current tenant are exempt while tenant remains in possession.
T devises "to my son A for life, then to A's children who reach age 25." A is alive at T's death and has one child, B, age 10. Does the gift to A's children violate the Rule Against Perpetuities?
O conveys "to City Park District for so long as used as a park, then to State Library." Which statement is correct?
Under the Uniform Statutory Rule Against Perpetuities (USRAP), an interest is valid if:
O conveys Blackacre "to A and her heirs, but if Blackacre is ever used for commercial purposes, then to B and his heirs." Twenty-five years later, A opens a retail store on Blackacre. The jurisdiction applies the common law Rule Against Perpetuities. Who owns Blackacre?
T's will devises property "to my daughter D for life, then to D's grandchildren." At T's death, D is 75 years old and has two adult children who have given D three grandchildren. The jurisdiction applies the common law Rule Against Perpetuities without modification. What is the status of the gift to D's grandchildren?
T devises property "to A for life, then to A's children who graduate from law school." At T's death, A is alive and has three children: B (age 30, already a law school graduate), C (age 25, currently in law school), and D (age 20, an undergraduate). The jurisdiction applies the common law RAP. What is the status of the remainder to A's children who graduate from law school?