The Fertile Octogenarian Rule of the Rule Against Perpetuities and the Unborn Widow Rule of the Rule Against Perpetuities

by thedesertion

I struggled with the Fertile Octogenarian Rule of the Rule Against Perpetuities and the Unborn Widow Rule of the Rule Against Perpetuities when I first started studying for the bar exam. These rules are so ridiculous. I think I have finally broken it down into a digestible format. Once I started seeing these rules like this, it was as if my eyes were opened to an entirely new universe. I hope this helps you as much as it helped me.

Fertile Octogenarian Rule – legal fiction that points out the logical flaws in the RAP. Can be used to invoke the RAP to make an interest in property void. The rule assumes that a living person, regardless of sex, age, or physical condition, will always be capable of having more children, thus allowing an interest to vest 21 years after all the lives in being at the time of the grant are dead. Old people get married all the time. Then if they adopt, those legal adoptions can be counted as “having more children.” So the new child doesn’t necessarily have to come from the old woman’s body, making age of the woman irrelevant.

Unborn Widow Rule – legal fiction that points out the logical flaws in the RAP. Can be used to invoke the RAP to make an interest in property void. Without more, a bare reference “to J’s widow” is construed to refer to the unknown person who fits that description on J’s death. It’s not necessarily the person who is J’s wife at the time the instrument is drafted. The RAP presumes the possibility that an old man might marry a very young woman, so young that she wasn’t even born at the time of the grant.

Example of Unborn Widow Rule in Motion: J.’s father conveys: “To J for J’s life, then J’s widow for life, then to J’s surviving children.” It could be J’s current wife, but it might not be. What if J gets married to a new woman who wasn’t born at the time of the conveyance?  Consider J. Howard Marshall & Anna Nicole Smith – he was 89, she was 26 when they married – what if the instrument was drafted sometime before Anna Nicole was born? He was already 63 years old when she was born! Also, J. Howard Marshall was married to a few other women before he met Anna Nicole. The bequest will potentially tie up the property for the entirety of J’s life, plus that of J’s alleged widow, who is not yet a life in being and might live more than 21 years after J’s death. In this situation, the interest must fail.

If you are confused, just look at this picture. It says it all.

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J. Howard Marshall and Anna Nicole Smith Make a Great Example of the Unborn Widow Rule