Legal Definitions - unborn-widow rule

The unborn-widow rule is a specific legal assumption used when applying the Rule Against Perpetuities. This overarching rule is a fundamental legal principle designed to prevent property from being controlled indefinitely by past generations, ensuring that its ownership eventually becomes clear and transferable within a reasonable timeframe.

The unborn-widow rule presumes that the future spouse of a person named in a will or trust might be someone who has not yet been born at the time the will-maker (testator) dies or the trust is created. This legal fiction, even if highly improbable in reality, can cause subsequent future interests in property to be declared invalid if they are set to take effect too far into the future, beyond the limits allowed by the Rule Against Perpetuities.

Here are some examples illustrating how the unborn-widow rule applies:

• Example 1: A Provision in a Will

  Imagine a will that states: "I leave my family estate to my son, Arthur, for his life, then to Arthur's widow for her life, and then, upon the death of Arthur's widow, to Arthur's then-living children."

  How it illustrates the rule: When the will-maker dies, Arthur is alive. The unborn-widow rule assumes that Arthur's future "widow" could be someone who has not yet been born at the time of the will-maker's death. If Arthur were to marry someone born *after* his father's death, and that person lived for many decades, the final gift to "Arthur's then-living children" might not become certain (or "vest") until well beyond the legal time limit set by the Rule Against Perpetuities (generally, 21 years after the death of anyone alive when the will-maker died). Because of this *possibility*, the law considers the gift to Arthur's children too remote and therefore invalidates it.

• Example 2: A Clause in a Trust Document

  Consider a trust document that specifies: "Income from this fund shall be paid to my grandson, Benjamin, for his life, then to Benjamin's surviving spouse for her life, and upon the death of Benjamin's surviving spouse, the principal balance shall be distributed to the local animal shelter."

  How it illustrates the rule: At the time the trust is created, Benjamin is alive. The unborn-widow rule dictates that Benjamin's "surviving spouse" is assumed to be someone not yet born. If Benjamin marries a person born after the trust was established, and that spouse lives for a very long time, the distribution of the principal to the animal shelter would be delayed for an indeterminate period, potentially exceeding the perpetuities period. Consequently, the gift of the principal to the animal shelter would be deemed void under this rule, as it might vest too remotely.