Legal Definitions - presumption-of-fertility rule

The presumption-of-fertility rule (sometimes called the "fertile octogenarian rule") is a legal principle that assumes, for certain legal purposes, that any living person is capable of having children, regardless of their age or physical condition, unless there is absolute medical proof to the contrary (such as a hysterectomy or vasectomy). This presumption is most commonly applied in property law, particularly when dealing with wills, trusts, and future interests in property, to ensure that all potential beneficiaries, even those whose birth seems highly improbable, are legally accounted for.

The rule exists to prevent property from being distributed prematurely or tied up indefinitely, and to protect the interests of all potential future heirs. It ensures that no theoretical future beneficiary is overlooked, even if their existence is statistically unlikely.

Here are some examples illustrating this rule:

• Trust Distribution: Imagine a trust fund established by a grandparent, stating that the principal should be distributed "to all of my grandchildren" upon the death of the grandparent's last surviving child. If the grandparent's only remaining child is an 85-year-old woman who has never had children, the presumption-of-fertility rule would still legally assume that this 85-year-old woman *could* potentially have a child. This means the trust assets cannot be immediately distributed to any existing grandchildren (if there were others from different children) because the law must account for the theoretical possibility of more grandchildren being born from the 85-year-old, whose interests would also need to be protected.

• Will and Future Property Interests: Consider a will that leaves a family farm "to my daughter for her lifetime, and then to her children." The daughter is 68 years old and has no children. She wishes to sell the farm outright to a developer. Due to the presumption-of-fertility rule, the law assumes that the 68-year-old daughter *could* still have children. These theoretical future children would have a potential interest in the farm. Therefore, the daughter cannot simply sell the farm without a court order that either terminates these theoretical future interests or provides a legal mechanism (like a bond) to protect the financial interests of any potential, unborn heirs.

• Estate Settlement and Beneficiary Identification: A court is overseeing the settlement of an estate where the will specifies that a portion of the assets should go to "the living descendants of my brother, Robert." Robert is 95 years old and has one adult child. Under the presumption-of-fertility rule, even at 95, Robert is legally presumed capable of having more children. This means that when identifying all potential beneficiaries for the estate, the court cannot definitively close off the possibility of future descendants from Robert, which could complicate or delay the final distribution of assets until all theoretical possibilities are legally addressed, perhaps through a court-approved settlement or a bond to secure potential future claims.