Chapter 8 - § 8.5 • FUTURE INTERESTS

• Jurisdiction: Colorado

§ 8.5 • FUTURE INTERESTS

§ 8.5.1—Reversions¹⁹²

A reversion is the residue of an estate retained by the grantor, which will commence in possession after the determination of some particular estate granted out by him.¹⁹³ A reversion is certain to vest in possession and is not subject to a condition precedent.¹⁹⁴

§ 8.5.2—Remainders¹⁹⁵

A remainder is a present, vested, irrevocable interest in property.¹⁹⁶ It must have some precedent particular estate to support it.¹⁹⁷ A remainder can be (1) indefeasibly vested, (2) vested subject to open, (3) vested subject to complete defeasance,¹⁹⁸ or (4) subject to a condition precedent.¹⁹⁹ It is not always easy to determine whether a limitation is a vested or a contingent remainder.²⁰⁰ In cases of doubt, courts lean toward holding it as vested rather than contingent, if consistent with sound construction.²⁰¹

Posthumous Remaindermen

A posthumous remainderman takes the estate in the same manner as if he or she had been alive during the lifetime of the parent, though no estate has been conveyed to support the contingent remainder after his or her death.²⁰²

Doctrine of Worthier Title

At common law, an attempt to create a remainder in the grantor's own heirs was ineffectual, and the reversion remained in the grantor by virtue of the Doctrine of Worthier Title.²⁰³ In Colorado, the Doctrine of Worthier Title has been abolished both as a rule of law and as a rule of construction.²⁰⁴

§ 8.5.3—Possibilities of Reverter²⁰⁵

Possibilities of reverter are discussed in passing in § 8.3.6.

§ 8.5.4—Rights of Entry for Condition Broken²⁰⁶

Rights of entry for condition broken are discussed in passing in § 8.3.7.

§ 8.5.5—Transmissibility of Future Interests

The transmissibility of future interests in Colorado is discussed extensively in an article by Simes and King²⁰⁷ in which they reach the following conclusions:

1. Vested future interests. They are transmissible, just as possessory interests, whether they are indefeasible or defeasible.
2. Contingent remainders and executory interests.

(a) While the courts could hold that they are transmissible by inter vivos transfer, and that creditors can reach them, very likely the contrary will be held.
(b) They are, however, alienable by voluntary inter vivos transfer if this is accomplished by transfer with warranty or other representation so that an estoppel is created; by transfer with fair consideration so that equity will enforce the transaction as a contract; or by release.
(c) Probably they are descendible and devisable, just like possessory interests.

3. Possibilities of reverter and powers of termination.

(a) Except as stated in (c), powers of termination

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