Also known as: springing executory interest · shifting executory interest · springing executory interests · shifting executory interests · executory interest
Written by attorneys · grounded in primary & secondary sources — see below
A future interest in a transferee that divests a prior estate upon the occurrence of a stated event. The interest either springs from the grantor or shifts title from one grantee to another.
Sydney Santos conveyed land to her son Sean Steele and his heirs, but provided that if Sean and all his issue should ever be dead then the land would pass to Sylvia Santos or her heirs. When Sean later died without surviving descendants, Sylvia asserted her claim. The limitation operated as a shifting executory interest that divested Sean's fee simple estate in favor of Sylvia.
Sofia Stern granted property to her daughter Sabrina Shah and her heirs, with a further limitation that if Sabrina and all her issue should ever be dead then title would pass to the person entitled under the possibility of reverter. Upon Sabrina's death without issue, the alternative limitation directed the property back to Sofia's successors. The shifting executory interest supplied the mechanism for the transfer.
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Stephen Shaw conveyed land to his son and the heirs of his body, but if the son and all his issue should ever be dead then the land would pass to Silverline Industries. After the son's death without surviving issue, Silverline claimed the property. The alternative executory interest shifted title away from the prior estate.
Sierra Solutions received a conveyance of land to it and its heirs, subject to a limitation that if Sierra and all its successors should ever be dead then title would pass to Spectrum Financial as the designated remainderman. When Sierra ceased to exist without successors, Spectrum asserted its interest. The shifting executory interest effected the transfer to the remainderman.
Sydney Santos held a fee simple conditional subject to an executory interest in favor of her children. Upon her death her surviving spouse Sean Steele claimed dower. The executory interest remained superior because the spouse's interest was expressly subordinate to any undestroyed executory limitation that restricted the deceased spouse's estate.
Sylvia Santos conveyed land to a city park board for public use but provided that if the land ever ceased to be used as a park then title would shift to a private foundation. Years later the board abandoned the park use. The foundation's shifting executory interest became possessory and divested the board's estate.
A gift over on failure of issue creates a valid executory interest only when the condition is tied to a definite time, such as death without then-living issue. An indefinite failure of issue renders the limitation void and leaves the first taker with a fee simple absolute.
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An executory interest can divest a prior fee simple estate and may spring from the grantor, whereas a remainder follows the natural termination of a prior estate and cannot cut short a fee simple.
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The rule applies to executory interests created in transferees but does not apply to possibilities of reverter or rights of entry retained by the grantor. An executory interest must vest or fail within lives in being plus twenty-one years or it is void.
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…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…