Also known as: vested remainder subject to open · subject to open · vested subject to being opened
Written by attorneys · grounded in primary & secondary sources — see below
A remainder or future interest held by an ascertained member of a class gift when the class remains open to additional members. The interest is certain to become possessory in some share but subject to dilution if later entrants qualify under the class description.
Elias leaves a trust paying annual bonuses to all licensed advisors currently employed as managing directors at Orion Capital once his youngest grandchild turns thirty. At Elias's death two managing directors already work at the firm. Their interests qualify as vested subject to open because the class can admit new managing directors before the distribution date, reducing each existing member's share.
Javier's will leaves his office condo to his niece Tina for life, then to whichever of his former law clerks has made partner by Tina's death. One former clerk has already made partner when Javier dies. That clerk's interest is vested subject to open because additional clerks may still satisfy the partnership condition before the life estate ends, diluting the share.
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A class member's future interest is classified as vested subject to open when the member is already ascertained and has satisfied any condition precedent at the time of the gift's creation, yet the class remains open to new entrants who may dilute the share. Potential class members who have not yet met the class description always hold only contingent interests.
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No. The possibility that additional members may join and reduce an existing member's share affects only the size of the interest, not its vested character. The interest remains vested because it is certain to become possessory in some amount, though subject to open.
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In a postponed class gift the future interest of each existing class member is classified as subject to open while the future interest of any potential class member remains contingent. The postponement does not itself convert existing members' interests into contingent ones.
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The classification allows existing members to alienate or encumber their interests while recognizing that later entrants may share in the gift. It also avoids treating the entire class gift as contingent merely because the class can grow before distribution.
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