CONTROL BY THE DEAD
AND ITS LIMITS
The Rise and Tall of the Rule against Perpetuities
OUR LEGAL SYSTEM allows the dead to control the living, at least up to a point. The right to make out a will guarantees this. A person with property, money, and assets can cast a long shadow. You can (within limits) leave your money to anyone you please. And you can do more: you can add conditions. Often this is done by creating a trust. In a trust, you can, for example, stipulate that your children will only get the income from your property. You can keep them from getting their hands on the fortune itself, the capital that is producing this income; and you can specify that the trust will last as long as they live—or even longer. You can control the estate for years, decades, and even more, long after you are dead and buried.
But how long? Forever? No, not forever—at least this has been true in most states, and for at least two centuries. Under the law, there comes a point where the dead hand has to relax its grip. A very curious and complicated doctrine, known as the rule against perpetuities, acted in most states as a crucial factor limiting how long trusts could last. The details of this rule are notoriously involute. The rule tortured generations of law students (and a fair number of estate lawyers). It is not hard to state the rule in a single sentence. Explaining what it means, and how it works, is another matter.