The Future of Future Interests

I. IntroductionFuture interests are essential to the Anglo-American law of property. Developed in the fourteenth, fifteenth, and sixteenth centuries,1 they permit ownership to be shared among generations, hence giving property transactions a degree of flexibility historically unavailable to countries rooted in Roman law.2 Yet our law of future interests carries much of its late-medieval baggage: it revels in unhelpful complexity, elevates form over substance, and frustrates the very transactions it should facilitate.3To a medieval problem, this Article proposes a medieval solution: simplification. It is one of history's ironies that as Parliament and the common-law courts were laying the foundation for our complicated structure of future interests, an English philosopher was preaching the virtues of conceptual simplicity. His name was William of Ockham,4 his lasting contribution the principle pluritas non est ponenda sine necessitas: plurality should not be posited without necessity.5 The principle is known as Ockham's Razor,6 its blade ready to cut away purposeless complexity.The law of future interests desperately needs Ockham's Razor. The system of future interests is built on unhelpful and unnecessary classifications and burdened with outmoded rules of substantive law. Part II of this Article proposes five fundamental reforms to future interest law. These proposals eliminate the classificatory superstructure and the outdated substantive rules while at the same time retaining the temporal division of ownership that is at the heart of modern property transactions. Part III codifies these reforms in a proposed Uniform Future Interests Act with accompanying commentary. The Article concludes by urging the Act's promulgation by the Uniform Law Commission7 and its adoption by state legislatures.II. Five ReformsThis Article proposes five fundamental reforms to the law of future interests. First, a future interest should be alienable irrespective of its classification. Second, the failure or acceleration of a future interest should occur irrespective of its classification. Third, archaic rules of future interest law should be abolished. Fourth, the limit (if any) on the duration of a future interest should be unrelated to vesting. Fifth, and last, the classification of future interests should be eliminated. This Part of the Article considers each of the five reforms in turn.A. A Future Interest Should Be Alienable Irrespective of Its ClassificationLet us begin with the first reform: a future interest should be alienable irrespective of its classification. At common law, all categories of future interests were alienable at death, but only vested interests were alienable inter vivos.8 Nonvested interests-contingent remainders and executory interests-were viewed as too speculative; they were "mere possibilities of receiving an interest in the future,"9 rather than property interests in their own right. Despite this inalienability rule, holders of contingent interests in England still found three ways to make transfers:10 contracts were enforceable if adequate consideration had been received by the transferor;11 deeds were enforceable if the deed contained a covenant of warranty, thereby estopping the transferor from challenging the transferee's title;12 and releases were enforceable if the release was in favor of the person whose future interest would be defeated if the released interest were to vest.13 With these exceptions, as one future interests text nicely puts it, the common-law rule "boil[ed] down to this: Purported transfers for inadequate consideration by quitclaim deed to someone other than a person in whose favor the interest could have been released [were] ineffective."14Today, forty of the fifty common-law jurisdictions in the United States15 have abolished the inalienability rule, thus making contingent interests fully transferable.16 However, nine states retain some form of rule against alien-ation for contingent interests. …