The rule against perpetuities is a legal doctrine that prevents property from being tied up so long that no living person can effectively buy, sell, or use it. It sits at the intersection of property law and public policy. The core idea is simple. Society needs markets to function. Land and assets must remain alienable. If a dead person’s will can control a farm for three centuries, that farm is dead weight. The law steps in to cut that control short.
Where the Concept Comes From
The term perpetuity comes from the Latin in perpetuum, a biblical phrase referring to God’s eternal existence. Early English lawyers borrowed it for a reason. In the late 16th century, conveyancers tried to create deeds that made land inalienable forever. Courts rejected these attempts as an invalid human attempt to rival divine permanence.
This rejection birthed the rule. Perpetuity became the legal antithesis of freedom. By the end of the 17th century, judges clarified that future interests could not prevent property transfer for “too long” a time. The next 150 years (1687–1833) were spent defining exactly how long was “too long.”
The Classic Formula: Life in Being Plus 21 Years
The common-law rule settled on a specific timeframe. Property cannot be restricted for longer than:
- The lifetimes of human beings alive when the conveyance was made
- Plus 21 years
- Plus any periods of gestation
This formula aligned with English marriage settlements, where land was often tied up until the eldest son reached full age. The rule invalidated any interest in property, real or personal, that might take longer than this period to vest. It focused on possibility, not actual events. A gift that could vest too late was void, even if it vested early.
This “common-law rule against perpetuities” still operates in England and many American states, governing both land and personal property. It balances two competing interests. It ensures property becomes alienable after a reasonable period. It also limits the power of the “dead hand” to control the future.
Why Courts Modified the Rule in New York
In 1830, the New York legislature changed the game. They adopted statutes that shortened the permissible period. They also applied the rule to the duration of private express trusts, not just future interests. This statutory innovation spread to other states.
But the trend reversed. Over the next century, states generally returned to the common-law standard. New York itself largely reverted to the original rule in 1958. Why the back-and-forth? Jurists in the common-law world widely agree that the classical rule is too capricious. It can invalidate well-intentioned trusts based on hypothetical events that never happen. Statutory modification became necessary to mitigate this harshness.
Modern Reforms: From 80 Years to 125
The nature of these modifications varies by jurisdiction. In England, the Perpetuities and Accumulations Act 1964 made far-reaching changes. It allowed dispositions to be valid if they actually vested during a statutory “perpetuity period,” even if they might have violated the common-law rule. This substituted actual events for possible events.
The act also allowed settlors or testators to specify a custom period, up to 80 years, for specific deeds or wills. Then, the Perpetuities and Accumulations Act 2009 extended the default perpetuity period to 125 years.
Exceptions to the rule also exist for social policies considered superior to general alienability. These include:
– Perpetual trusts for burial lots
– Trusts for pension plans
– Charitable gifts
– Other specific types of conveyance
The rule against perpetuities is not static. It evolves as courts and legislatures weigh the need for property mobility against the desire to honor long-term intentions. For anyone drafting a will or setting up a trust, understanding which version of the rule applies in your jurisdiction is critical. A mistake can render a key clause void.
