Illustrations of The Rule Against Perpetuities - The Unborn Widow

The Unborn Widow

The unborn widow poses a similar seemingly silly but logical problem. Suppose that property is left "to A for life, then to his widow for life, then to A's issue." Because the gift to A's widow cannot be resolved until A dies, the law will consider the possibility that, after the property is left to A, he marries a woman who was not born at the time the gift was made. For instance, it is possible that in 1950 the property is left to A, in 1955 a woman B is born, and in 1975 A and B marry each other. Furthermore, it is possible that A will die, say in 1980, and his widow B will outlive him for more than 21 years. Suppose that she dies in 2005. B was not a life in being at the time of the transfer, and the only remaining "validating life" under the rule against perpetuities is A, who has been dead for 25 years by this time. The gift to A's issue does not vest until his widow dies, and since that could theoretically happen more than 21 years after the death of all lives in being at the time of the transfer, the transfer to A's issue is invalid from the start. Note that changing the word "issue" to "children" makes the gift valid, since the class of "A's children" is closed and completely cognizable at the time of A's death (plus a gestation period as allowed by the rule). On the contrary, the class of "A's issue" is subject to expand long after A's death, and thus a gift to A's issue cannot vest in this case until B dies. Because her death is assumed to be more than 21 years after A's death, the result is that the gift to A's issue can vest more than 21 years after the end of all lives in being at the time the gift was created.

The problem of the unborn widow is a frequently used illustration of the Rule's complexities. Suppose that a woman, A, wants to devise her estate to her son B and his wife, and then to their children.

A's devise might look something like this:

To B for his life, then to his widow, if any, for life, then to B's children then living.

Though this seems like a reasonable devise, it actually violates the Rule because there is a possibility, however remote, that the interest to "B's children then living" will vest more than 21 years after the deaths of all lives in being.

Suppose B is married without children at the time of the devise. Suppose further that B's wife were to die or B were to divorce. If B were to remarry to someone who was born after the devise, the new wife would not be a life in being at the time of the devise. Similarly, any children born to B and his new wife would also not be lives in being at the time of the devise. If B's new wife were to outlive him (making her his widow) and survive him by more than 21 years, then the interest to "B's children then living" would not vest until after the perpetuities period expired (21 years after the death of B, the only relevant life in being at the time of the devise), because only upon the death of the widow can one ascertain who are "B's children then living."

Alternately, if B is not married at the time of the devise and B were to get married afterwards, again the wife could not be a life in being since she is not identifiable at the time of the devise. Similarly to the previous case, she could outlive B by more than 21 years, voiding the grant to their children (who also could not be lives in being because they would have been born after the devise was made).

However, if the last interest were simply to B's children, rather than to B's children then living, it would vest upon B's death because at that time all of B's children would be ascertainable. In this instance, the devise would be valid under the Rule.