Reforming Estates and Future Interests Law

D. Benjamin Barros (associate professor of law, Widener University) has recently published his article entitled Toward a Model Law of Estates and Future Interests, 66 Wash. & Lee L. Rev. 3 (2009). 

The following is an excerpt from the introduction to the article:

The recent release of a preliminary draft of Division VII of the Restatement (Third) of Property: Wills and Other Donative Transfers, represents a radical departure from this tradition of much complaint but little progress in the effort to modernize and rationalize the basic system of property ownership. The Restatement (Third) is unabashedly reformist and represents the first major institutional effort to clear the unnecessary vestiges of feudalism from this fundamental area of property law. Although subject to criticism in certain respects, the Restatement (Third) presents a cogent and elegant simplification of the system of estates and future interests.

The emergence of the Restatement (Third)suggests that the time is right for NCCUSL and/or the ALI to begin an institutional effort to develop a model law of estates and future interests. Though it is an impressive intellectual achievement, it is doubtful that the Restatement (Third) will achieve substantive reform of estates and future interests law on its own. Courts historically have been hesitant to make major changes in property law, in part because making broad, systemic changes like those proposed in the Restatement (Third) are better suited to the institutional competence of the legislatures. State legislatures, in turn, are unlikely to make systemic changes to the basic law of ownership unless and until those changes have been approved by a major law reform institution.

This Article seeks to kick-start this process by developing a proposed model law of estates and future interests. With a few notable exceptions, the proposed model law is substantively consistent with the Restatement (Third). The approach taken in the proposed model law is informed by problems that have beset prior proposals for legislative property law reform. It intentionally avoids controversial issues, such as substantive reform of the Rule Against Perpetuities, that could derail legislative approval. It is also relatively modest in its scope. It does not attempt to create a uniform and comprehensive code of estates and future interests. Rather, it is designed to act as a patch that updates, but fits within, the existing common law system of ownership.

Part II makes the case for reform of the estates and future interests system. It begins with a basic primer on the characteristics of the current system. It then analyzes the system’s unnecessary complexity and explains why simplification is needed to make the system work properly. Part III discusses the advantages and disadvantages of Restatements and model laws as mechanisms to achieve legal reform, and argues that while Restatements may have a role to play in reforming property law, change to the estates and future interests system is best done legislatively. Part III also considers the difficulties that have led to the relative failure of previous model laws of property. These issues, which have been neglected in prior academic work on estates and future interest reform, inform many of the substantive decisions reflected in the proposed model law. Part III also considers the relevance of uniformity to property reform efforts and notes the differences in institutional focus between NCCUSL and the ALI, without expressing an opinion about which of the two would be better suited to formally develop a model law of estates and future interests.

Part IV discusses the substance of the proposed model law, the text of which is included as an appendix to this Article. Part IV first discusses a number of preliminary issues, including the alienability of present and future interests in property and the abolition of feudal distinctions between types of estates. It then comprehensively discusses the simplified systems of present and future interests reflected in the proposed model law. It also discusses a number of important collateral issues, including rules of construction and the abolition of the Doctrine of Worthier Title, the Rule in Shelley’s Case, and the Rule of Destructibility of Contingent Remainders. Part IV additionally highlights the differences between the proposals presented in this Article and proposals made in prior academic work and in the Restatement (Third). Part V then briefly discusses issues concerning the retroactive application of many of the reforms included in the proposed model law.

The Article concludes by highlighting some of the major differences between the proposals made here and those that have been made before, and by arguing that the time is right for NCCUSL and/or the ALI to begin the formal institutional process to promulgate a model law of estates and future interests.