Legal Definitions - remainder subject to open

In property law, a remainder subject to open describes a future right to own property that is given to a group of people, where that group has the potential to grow larger over time.

Here's a breakdown of what that means:

• It's a remainder because it's a future interest; someone else has the right to use or possess the property first (e.g., for their lifetime or a set number of years). Only after this initial right ends does the "remainder" group get to take possession.
• It's subject to open because the group of people who will eventually own the property is not yet finalized. The gift is made to a "class" of individuals (like "children," "grandchildren," or "nieces and nephews").
• At the time the gift is initially made (e.g., when a deed is signed or a will becomes effective), at least one member of this class must already exist. This makes the interest "vested" in the sense that someone in the class is guaranteed to get it.
• However, if more members are born or join the defined class *before* the property is ready to be taken by the remainder group, those new members will also be included. This means the share of the property for each individual member of the class can get smaller as the class "opens up" to include more people.

Here are some examples to illustrate this concept:

• Example 1: Family Trust for Grandchildren

  A wealthy grandparent establishes a trust. The trust document states that their daughter, Maria, will receive all the income from a commercial building for her entire life. After Maria passes away, the ownership of the commercial building is to be divided equally among "all of my grandchildren."

  At the time the trust is created, the grandparent has two grandchildren: Leo and Sofia. Leo and Sofia have a remainder subject to open. If, before Maria dies, another grandchild is born (perhaps Maria has another child, or another of the grandparent's children has a child), that new grandchild will also become a member of the class. When Maria eventually passes away, the commercial building will be divided among *all* grandchildren alive at that time, meaning Leo's and Sofia's individual shares will be smaller than if no new grandchildren had been born.

• Example 2: Farm for Nieces and Nephews

  An elderly bachelor, Mr. Henderson, writes a will. He leaves his beloved family farm to his sister, Eleanor, for her lifetime. After Eleanor's death, the farm is to go to "all of my nieces and nephews."

  When Mr. Henderson passes away, Eleanor is alive, and he has three nieces and one nephew. These four individuals hold a remainder subject to open. If Eleanor's sibling (who is also Mr. Henderson's sibling) has another child *after* Mr. Henderson's death but *before* Eleanor's death, that new child (who would be Mr. Henderson's niece or nephew) will also be included in the class. Upon Eleanor's death, the farm will be divided among all nieces and nephews who exist at that time, reducing the share for each of the original four.

• Example 3: Art Collection for Great-Grandchildren

  A prominent art collector creates a will specifying that their valuable art collection will be displayed in a public gallery for 25 years after their death. Following this 25-year period, the collection is to be distributed equally among "all of my great-grandchildren."

  When the art collector dies, they have one great-grandchild, Lily. Lily holds a remainder subject to open. During the 25 years the collection is on display, if more great-grandchildren are born into the family, they will join the class of beneficiaries. At the end of the 25-year period, the art collection will be divided among *all* great-grandchildren who are alive at that point, meaning Lily's individual share will be reduced by the inclusion of any newly born great-grandchildren.