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Higher category: Law and Common law
In property law of the United Kingdom and the United States and other common law countries, a remainder is a future interest given to a person (who is referred to as the transferee or remainderman) that is capable of becoming possessory upon the natural end of a prior estate created by the same instrument. Thus, the prior estate must be one that is capable of ending naturally, for example upon the expiration of a term of years or the death of a life tenant. A future interest following a fee simple absolute cannot be a remainder because of the preceding infinite duration.
There are two types of remainders in property law: vested and contingent. A vested remainder is held by a specific person without any conditions ("conditions precedent"); a contingent remainder is one for which the holder has not been identified, or for which a condition precedent must be satisfied.(pp 1018–1019)
A remainder is vested if both
There are three types of vested remainders:
An indefeasibly vested remainder is certain to become possessory in the future, and cannot be divested.
Vested remainders subject to open are rare.
The most important distinction between vested remainders subject to open and indefeasibly vested remainders are that vested subject to open remainders can be subject to language in the conveyance which can enlarge the class of persons which have a future interest in the property. Thus, C may have more children than just D and E who will also have a future interest in Blackacre.
Vested remainders subject to divestment are remainders that may be terminated by an executory interest before becoming possessory.
The contingent remainder is one that is surrounded in uncertainty. A remainder is contingent if one or more of the following is true: (1) it is conveyed to an unascertained or unborn person, (2) it is made contingent on anything but the natural termination of the preceding estate.
In recent years, courts in the United States have merged contingent remainders with executory interests into one category.
The key difference between a reversion and a remainder is that a reversion is held by the grantor of the original conveyance, whereas "remainder" is used to refer to an interest that would be a reversion, but is instead transferred to someone other than the grantor. Similarly to reversions, remainders are usually created in conjunction with a life estate, life estate pur autre vie, or fee tail estate (or a future interest that will eventually become one of these estates).
Main article: Hereditary peer § Inheritance of peerages
In the United Kingdom it is possible for a patent creating a hereditary peerage to allow for succession by someone other than an heir-male or heir of the body, under a so-called "special remainder".
Several instances may be cited:
In many cases, at the time of the grant the proposed peer in question had no sons, nor any prospect of producing any, and the special remainder was made to allow remembrance of his personal honour to continue after his death and to preclude an otherwise certain rapid extinction of the peerage. However, in all cases the course of descent specified in the patent must be known in common law.
For instance, the Crown may not make a "shifting limitation" in the letters patent; in other words, the patent may not vest the peerage in an individual and then, upon some event other than death (such as succession to a higher title), shift the title to another person. The doctrine was established in the Buckhurst Peerage Case (1876) 2 App Cas 1, in which the House of Lords deemed invalid the letters patent intended to keep the Barony of Buckhurst separate from the Earldom of De La Warr. The patent stipulated that if the holder of the barony should ever inherit the earldom, then he would be deprived of the barony, which would instead pass to the next successor as if the deprived holder had died without issue.