Also known as: executory interest
Written by attorneys · grounded in primary & secondary sources — see below
A future interest in land or personal property held by a transferee that divests a prior estate upon the occurrence of a specified condition. The interest arises only after a gap in possession or by shifting title from one grantee to another.
Eric Espinoza conveyed land to his daughter in fee simple conditional on the birth of issue. The deed further provided that if no issue survived Eric, title would shift to Elena Estrada. When Eric died without surviving descendants, Elena's interest became possessory under the alternative executory limitation.
Ella Emerson held a fee simple conditional estate. Her deed created an executory interest in Equinox Energy if no issue survived her. Upon Ella's death without descendants and with no qualifying executory holder, the property passed instead under the possibility of reverter to the original grantor.
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Emma Erickson received a fee simple conditional estate. The conveyance added an executory interest in Eastern Electric if no specified issue survived. When Emma died without qualifying descendants, the executory interest in Eastern Electric took effect and divested any intermediate claims.
Edith Eberhardt held a fee simple conditional estate. The deed named a designated remainderman and created an alternative executory interest in Elemental Pharmaceuticals if no issue survived. With no surviving issue and no executory holder, the remainderman took possession.
Erika Echevarria held a fee simple conditional estate subject to an executory interest in Echo Systems. After her death without issue, her surviving spouse claimed dower. The spouse's interest remained subordinate because the executory interest had not been destroyed by prior transfer.
A testator devised land to a city for a park but provided that if the land ceased to be used as a park it would shift to a private university. Decades later the city sold the land for commercial development. The university asserted its executory interest to recover the property from the purchaser.
Executory interests divest a prior estate upon a condition and can follow a fee simple, while remainders await the natural end of a prior estate such as a life estate. Executory interests therefore fill gaps in seisin that remainders cannot.
Yes. Because they are not vested at creation, executory interests must vest or fail within lives in being plus twenty-one years or they are void. Reversionary interests retained by the grantor remain exempt.
Yes. A shifting executory interest can automatically divest a fee simple determinable when the stated condition occurs, cutting short the prior estate in favor of the third-party holder.
…by creating a joint life estate with a contingent remainder in fee to the survivor; a tenancy in common in simple fee with an executory interest in the survivor; or a fee simple to take effect in possession in the future.” (Swenson & Degnon, supra, at p. 469, fn. omitted.) We discard the archaic rule that one cannot enfeoff…