Executory Interests

MBE Substantive Law FAQ Series: Executory Interests vs. Contingent Remainders

We receive a lot of questions from our course students asking us to explain tricky areas of substantive law in more detail.  Some topics, however, turn up in questions far more frequently than others.  Our MBE Substantive Law FAQ Series addresses areas of law tested on the bar exam that are often conflated or not properly understood.  We hope to explain them in a way that will help you process the concept and correctly answer questions if the issue turns up on the MBE!  In this post, we focus on a tricky area of real property: executory interests vs. contingent remainders!

MBE Substantive Law FAQ Series: Executory Interests vs. Contingent Remainders

So much of present and future interests comes down to form over actual real-life implications.  It is all about how the situation is presented to you.  A good place to start is a very simple definition of these terms.  A contingent remainder is going to flow from the natural termination of the previous estate (as long as the condition is met).  The condition is essentially a condition precedent to taking the estate after the previous estate naturally ended.  An executory interest is going to cut short the previous estate before it would have ended naturally.  The condition that cuts short the estate is a condition subsequent. The estate already exists and then if the condition subsequent occurs, the estate will terminate early and go to the person holding the executory interest.

On the MBE, you might see something where an interest is vested in X (certain to become possessory), but then there is some sort of condition that can occur and take that interest away from X and give it to Y. In this case, Y has an executory interest.  X has an interest and Y’s interest will cut it short if the condition occurs.  Now let’s say that on the MBE you see a future interest in Y where Y will follow a life estate after it terminates, but Y will only get it if a certain condition occurs.  In this case, Y has a contingent remainder.  Y’s interest naturally follows the termination of the previous estate but will only become possessory if a condition occurs first (Y’s interest isn’t a vested remainder because a condition has to occur first, thus it is contingent).

Here are two different examples that have the same meaning and outcome. However, they are worded differently and so they have different technical interpretations.

Example 1: To A for life, then to B, but if B does not have children, then to C.

Example 2: To A for life, then to B if B has children, otherwise to C.

Both of these statements essentially have the same effect in real life.  C will get the estate if B doesn’t have children.  But real property and present/future interests are all about form.  Grammar means everything in these types of questions.  So while there is no substantive difference, the words chosen do make a difference in the terms used.  Example 1 ends up creating an executory interest while Example 2 creates two contingent remainders.  Not sure why?  Let’s dig into it.

Example 1

A has a life estate, that’s simple.  Now let’s look at the next part of the sentence: “then to B,”.  Note how there is a comma there, so when you’re reading it, you should naturally pause and treat this as a separate component of the problem.  This portion of the sentence is vesting a remainder in B.  B is ascertained and the estate will become possessory.  Then take the next part of the sentence: “but if B does not have children”.  This portion is introducing a condition subsequent onto B’s future interest, so if B does not have children, B’s interested will be terminated.  The existence of this condition subsequent turns B’s vested remainder into a vested remainder subject to total divestment (or subject to an executory interest).

Finally, we have the last part of the sentence: “then to C.”  C will get the estate if the condition subsequent occurs.  When it is written this way, with B having an interest that is vested but capable of being terminated by a condition subsequent, C is said to have a shifting executory interest because it can end B’s interest sooner than originally intended.

Example 2

Again, take the sentence chunk by chunk and pause to evaluate when you hit the punctuation.  A has a life estate.  Now we take the next part of the sentence: “then to B if B has children”.  This time B having children is a condition precedent to B even taking at all.  There’s no punctuation or language this time that indicates B’s interest is vested but could then be subject to divestment.  Rather, we go right into the “if” condition that B must satisfy.  This means B has a contingent remainder because we don’t know if B will ever take the interest due to the condition precedent.

Now the last part of the sentence: otherwise to C.  C also has a contingent remainder because it is dependent on B satisfying the condition precedent.  If the condition precedent doesn’t occur, C gets the estate and thus becomes the remainderman for the life estate.  C wouldn’t really be cutting any other interest short like an executory interest would, as B’s interest never actually arose (it was purely contingent).

Lastly, don’t forget though that there will only be a few questions on present and future interests out of 175 scored questions on the MBE. Therefore, you don’t need to devote an extreme amount of time to this topic.  Give it your best shot, but recognize when it is time to move on.  In the grand scheme of the bar exam, the difference between executory interests and contingent remainders on the MBE is a minor issue. So don’t let it stress you out too much!

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