Also known as: vested remainder subject to open · vested remainder subject to opening · subject to open · open-class remainder
Written by attorneys · grounded in primary & secondary sources — see below
A remainder created in favor of a class of persons that is vested in the existing members of the class but subject to partial divestment if additional persons later qualify for membership in the class.
Valentina Vasquez conveys Blackacre to her son Vaughn for life, remainder to Vaughn's children. At the time of the conveyance Vaughn has one child, Vera. Vera holds a vested remainder subject to open. If Vaughn later has another child the new child will share the remainder and reduce Vera's share.
Viktor Voronin devises property to his daughter Vivian for life, remainder to her children. Vivian has one child at the testator's death. That child holds a vested remainder subject to open. The court must determine whether the interest qualifies as vested for purposes of a partition action under state law.
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A vested remainder subject to open belongs to existing class members whose shares may be reduced by later-born or later-qualifying members. An indefeasibly vested remainder belongs to an ascertained person whose share cannot be diminished by any later event.
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The interests of unborn or unascertained class members remain contingent until they join the class. Because those contingent interests may vest or change beyond lives in being plus twenty-one years, the entire class gift is tested under the rule.
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The class closes when no additional members can enter under the terms of the instrument or when the rule of convenience applies at the time the preceding estate ends. Until then existing members hold interests subject to open.
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No. The remainder becomes possessory only when the preceding estate ends. Until that time the class remains open and each member's share is subject to dilution by new entrants.
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