Contingent Remainder: Definition, Rules, and Estate Planning...

Introduction

In U.S. property law, a contingent remainder is a future interest in real estate that will take effect only if a stated condition is satisfied or the future taker is identified by the time the prior estate ends (most often, at the life tenant’s death). It’s common in wills and trusts and plays a big role in how families, charities, and others receive property across generations.

This guide explains what a contingent remainder is, how it compares to a vested remainder, the conditions that make it contingent, and how courts handle these interests in real cases. You’ll also find drafting tips, transaction pointers, and a quick reference you can use when reading a deed, will, or trust.

What You’ll Learn

• The definition of a contingent remainder and how it becomes possessory
• How contingent remainders differ from vested remainders
• Typical conditions (survival, age, charity existence) and how they work
• Key case themes shown in Fletcher v. Ballard and Whiting v. Burr
• How the Rule Against Perpetuities (RAP) affects contingent gifts
• Practical drafting and title review steps to reduce disputes

Core Concepts

What makes a remainder contingent?

A remainder is a future interest created in someone other than the grantor that follows a prior estate (usually a life estate). A remainder is contingent if:

• The future taker is not yet ascertained (for example, “to A for life, then to A’s children,” when A has no children yet), or
• It is subject to a condition that must happen before the taker can receive possession (a condition precedent), such as “to A for life, then to B if B survives A.”

By contrast, “to A for life, then to B” creates a vested remainder in B because no further condition needs to occur for B’s interest to take effect at A’s death.

Key timing point: The question is whether the condition is met when the prior estate ends (often at the life tenant’s death), not at the testator’s or grantor’s death unless the instrument says so.

Contingent vs. vested remainders

• Contingent remainder

  • Taker is unascertained or must satisfy a condition precedent
  • Uncertain to become possessory
  • Example: “to A for life, then to B if B reaches 25”

• Vested remainder

  • Given to an identifiable person without a condition precedent
  • Certain to become possessory upon the natural end of the prior estate (unless later divested)
  • Example: “to A for life, then to B”

• Vested remainder subject to divestment

  • Vested now but can be cut off by a later event (a condition subsequent)
  • Example: “to A for life, then to B, but if B does not survive A, to C”
  • Here B’s interest is vested, but C holds an executory interest that will take if B fails the stated condition

Why this matters: The classification affects transferability, RAP analysis, creditor rights, and how a court will interpret failure of a condition.

Conditions you’ll see in practice

Common conditions that make a remainder contingent include:

• Survival: “to A for life, then to B if B survives A”
• Age: “to A for life, then to A’s grandchildren who reach 25”
• Status or event: “to A for life, then to B if B graduates from college”
• Family makeup: “to A for life, then to C if A dies without children”
• Charity existence: “to A for life, then to Charity X if it exists at A’s death”

Ambiguous phrases like “dies without issue” can cause disputes. Modern drafting uses clearer survival clauses, defined age conditions, and named alternate takers if the main condition fails.

The Rule Against Perpetuities (RAP) and savings clauses

The traditional RAP states that a contingent interest must vest or fail no later than 21 years after the death of a relevant life in being. Many states use the Uniform Statutory Rule Against Perpetuities (USRAP), which adds a 90-year “wait-and-see” period, and some states have modified or abolished RAP for certain trusts.

Practical RAP reminders:

• Age conditions over 21 in gifts to a class of descendants (like grandchildren to reach 30) can be risky under the traditional RAP.
• Include a RAP savings clause in wills and trusts so any problematic interest will terminate or distribute within the permitted period.
• Check your state’s statute; the approach varies across the U.S.

Destructibility, merger, and modern reforms

At common law, a contingent remainder could be destroyed if the prior estate ended early or merged with another estate. Most U.S. jurisdictions have rejected the old destructibility rule. Today, courts generally preserve contingent remainders or recharacterize interests to avoid unfair loss, but state law differences remain.

Merger can still matter: if the same person later acquires both the life estate and the next vested estate, the interests can merge. With contingent remainders in the mix, consult state law to see whether merger affects the contingent interest.

Key Examples or Case Studies

Example 1: Grandfather’s Will

• Setup: Grandfather leaves property to his son for life, then “to my granddaughter if my son dies leaving no children.”
• Condition: Granddaughter takes only if the son dies without issue.
• Outcome: The granddaughter’s remainder is contingent. If the son dies with children, the condition is not met and the granddaughter does not take.
• Takeaway: “If X dies without children” is a classic condition precedent. Clear alternate takers help avoid uncertainty if the condition fails.

Example 2: Charitable Remainder

• Setup: Owner leaves a life estate to a spouse, then “to Charity Y if Charity Y exists at my spouse’s death.”
• Condition: Charity Y must still exist when the spouse’s life estate ends.
• Outcome: Charity Y’s remainder is contingent on its continued existence. If Charity Y dissolved, the gift may fail or be redirected by state law (for charitable gifts, courts may apply cy pres to carry out a similar purpose).
• Takeaway: When naming a charity, consider including a backup charity or purpose-based provisions.

Case snapshot: Fletcher v. Ballard

• Issue: A life estate was followed by a gift “to grandchildren who reach age 21.”
• Question: Did the grandchildren hold vested or contingent interests?
• Holding: The court treated the grandchildren’s interests as contingent because reaching age 21 was a condition precedent to taking.
• Takeaway: Age thresholds often make a remainder contingent unless the document makes the interest vested at an earlier point.

Case snapshot: Whiting v. Burr

• Issue: Property passed to a wife for life, remainder “to my children if they survive their mother.”
• Question: Was survival a condition that made the remainder contingent?
• Holding: The court treated the children’s interests as contingent upon outliving their mother.
• Takeaway: Express survival language usually creates a condition precedent and keeps the remainder contingent until the life tenant dies.

Additional hypothetical: Class gift with age condition

• Setup: “To A for life, then to A’s children who reach 25.”
• Points to watch:
  • If A has no children when the gift is made, the takers are unascertained, making the remainder contingent.
  • RAP concerns can arise if the gift might vest beyond the permissible period (check state law and include a savings clause).
  • Consider allowing distributions at 21 or holding assets in trust until age conditions are met.

Practical Applications

• Draft with precision

  • State clearly whether survival is required (“if X survives A” vs “then to X”).
  • Use defined age conditions and consider whether the condition should be a condition precedent or a condition subsequent.
  • Name alternate takers if the main condition fails (“and if not, to C”), which reduces the chance of reversion and litigation.
  • Add a RAP savings clause to keep gifts within statutory limits.
  • For charities, include a backup charity or purpose-based language in case the named charity no longer exists.

• Plan for class gifts

  • Clarify when the class closes (e.g., “those living at A’s death”).
  • Specify how to handle a beneficiary who dies before the condition is met (anti-lapse may not apply if survival is required).

• Title and transactions

  • When a life estate is on title with future interests, identify all contingent remaindermen and conditions.
  • If minors hold contingent remainders, court approval and a guardian ad litem may be required for a sale.
  • Title insurers often require releases or court orders to clear contingent interests before issuing a policy.
  • Consider converting to a trust holding to manage contingencies and simplify future transfers.

• Beneficiaries’ planning

  • A person with a contingent remainder holds an uncertain interest; it may affect borrowing or estate planning.
  • Some states allow assignment or disclaimer of contingent interests; consult local law before taking action.

• Litigation risk management

  • Ambiguity around phrases like “dies without issue” is a common source of disputes.
  • Use plain, time-specific terms (e.g., “if X has no living children at A’s death”) and document the drafter’s intent.

Summary Checklist

• Define the interest: Is the taker unascertained, or is there a condition precedent?
• Classify correctly: Contingent remainder vs. vested remainder (including subject to divestment).
• Pin down the condition: Survival, age, status, or existence of an organization.
• Set backup plans: Name alternate takers if the main condition fails.
• Address RAP: Check state law, watch for age-over-21 class gifts, and add a savings clause.
• Consider modern rules: Most states have rejected destructibility; verify local statutes.
• For charities: Include a successor charity or purpose; be aware of cy pres.
• For deals: Identify all present and future interest holders; obtain necessary consents or court orders.
• Reduce ambiguity: Avoid phrases with multiple meanings; use specific, time-anchored language.

Quick Reference