The Rule Against Perpetuities: A Brief History
To understand the octogenarian rule, one must first grasp the purpose of the Rule Against Perpetuities (RAP). This common law doctrine was developed in England and later adopted in the United States to prevent real property interests from being tied up indefinitely in the future. The standard legal formulation of the RAP states that "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". The rule aims to promote the free transferability of land by ensuring that ownership and control of property eventually become clear and certain.
The rule prevents grantors from exerting 'dead hand' control over their property for generations. However, applying the rule was notoriously difficult and often led to absurd results based on hypothetical, biologically impossible scenarios.
The Absurdity of the 'Fertile Octogenarian' Fictional Scenario
The fertile octogenarian rule was the most famous—and infamous—of these scenarios. It was a strict, biological presumption that a court must make when applying the RAP to an estate plan. The hypothetical typically involved a property transfer contingent on an elderly person having another child, thus extending the vesting period beyond the acceptable limit. The common law did not concern itself with medical reality, only with legal possibility.
For example, a grant might state, "to my daughter, A, for life, then to her children who reach the age of 25." If A is 80 years old when the grant is made, the common law required courts to assume that she could still have another child. The mere possibility that the property interest might not vest within the perpetuity period was enough to void the entire gift. This rigidity and focus on improbable scenarios highlighted the harshness of the common law RAP.
Modern Statutory Reforms
Due to the arbitrary outcomes of the common law rule, most U.S. jurisdictions have enacted statutory reforms. These generally involve:
- 'Wait-and-See' Approach: This approach avoids immediate invalidation based on remote possibilities, allowing a period (like 90 years) to see if an interest vests within the perpetuity period.
- Uniform Statutory Rule Against Perpetuities (USRAP): Validates an interest if it meets the traditional rule or vests within 90 years.
- Abolition or Fixed Term: Some states have abolished the rule or replaced it with a long fixed term for trusts.
Comparing Common Law vs. Modern Law
| Feature | Common Law Rule Against Perpetuities | Modern Statutory Rule Against Perpetuities |
|---|---|---|
| Standard of Application | What could possibly happen | What actually happens (wait-and-see) or a fixed statutory period |
| Fertile Octogenarian | A required, rigid legal presumption | Not a factor; biological reality or fixed period considered |
| Risk of Invalidation | High, based on improbable hypotheticals | Significantly lower due to more flexible rules |
| Jurisdictional Uniformity | Varying interpretations across different courts | More predictable and uniform due to statutory codification |
The Relevance of the Octogenarian Rule Today
Although largely a relic, the fertile octogenarian rule is still relevant. It serves as a classic illustration of the common law RAP's strictness for law students. In states without modern reforms, the common law rule might still apply. Understanding the rule also emphasizes the need for clear estate planning.
For senior care, tying up assets with complex future interests due to old rules could delay or prevent asset sales, impacting access to funds for long-term care.
Key Takeaways for Seniors and Their Families
Modern estate planning for healthy aging should prioritize clarity. Tools like revocable living trusts offer efficient asset management and distribution without relying on outdated legal fictions.
Consult an estate planning attorney familiar with your state's laws for guidance. The American Bar Association provides resources on trusts and estates for those seeking to secure their future [https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/].
The Legacy of a Legal Anomaly
In conclusion, the 'fertile octogenarian' was a legal fiction used to test the Rule Against Perpetuities, not a medical reality. While modern statutes have largely made this fiction obsolete, its legacy highlights the evolution of property law. For seniors, the key takeaway is the importance of using modern, unambiguous estate planning to protect assets and ensure wishes are carried out efficiently.
