What Are the Modern RAP Reforms?
The traditional common-law Rule Against Perpetuities voids an interest the instant it’s created if there is any conceivable scenario — however far-fetched — in which it might fail to vest within a life in being plus 21 years. That “what if anything is possible” test destroyed plenty of interests that would have vested just fine in the real world. California, like most states, has since adopted reforms that soften the blow.
If you’re preparing for the California Bar Exam, never stop your RAP analysis at “void ab initio” under the traditional test. California examiners expect you to layer the modern reforms on top before reaching a final answer.
Modern RAP reforms, in one sentence: they are statutory and doctrinal fixes — principally the wait-and-see approach and California’s 90-year Uniform Statutory Rule Against Perpetuities savings period — that replace or supplement the harsh common-law worst-case test with an inquiry into what actually happens, or what happens within a fixed statutory window.
Reform One: Wait-and-See
Under the Second Restatement’s wait-and-see approach, a court doesn’t test validity against a hypothetical worst-case scenario at the moment of creation. Instead, it postpones judgment until the measuring life ends and asks what actually occurred. An interest violates RAP under this approach only if it actually fails to vest within the perpetuities period — not merely because it theoretically could have. This single shift eliminates the traditional rule’s most notorious defect: punishing interests for remote, almost-never-happens hypotheticals.
Reform Two: California’s USRAP (the 90-Year Rule)
California has adopted the Uniform Statutory Rule Against Perpetuities (USRAP), codified at Cal. Prob. Code §§ 21200–21231. It works as a layered, two-track test:
- Track one: Any interest that’s valid under the traditional common-law RAP (measuring life plus 21 years) remains valid — the old test isn’t discarded, just supplemented.
- Track two: Under Cal. Prob. Code § 21205, any interest that actually vests within 90 years of its creation is independently valid, even if it would have failed the traditional worst-case test.
An interest is saved if it satisfies either track. The 90-year period functions as a statutory wait-and-see window — generous enough to capture nearly every realistic vesting scenario, while still preventing truly perpetual restraints on land.
Reform Three: Cy Pres as a Backstop
If an interest fails both the traditional test and the 90-year window, California courts don’t have to void it outright. Under the cy pres (“as near as possible”) doctrine, a court may reform the instrument to come as close as it can to the grantor’s original intent while still satisfying RAP — for example, reducing a vesting age of 30 down to 21 to cure the violation. Cy pres is a tool of last resort, applied only after both other tracks have failed.
Worked Example
O creates a California trust: “To my grandchildren who reach age 30, income to my child Naomi for life in the meantime.” At the time of creation, Naomi is alive and has one child, age 4.
Traditional common-law test: This risks the classic “unborn widow” or “afterborn child” problem — Naomi could theoretically have another child after the trust’s creation, and that child might not turn 30 until more than 21 years after every currently living measuring life has died. Under the pure worst-case test, the gift is void ab initio.
California’s modern analysis: The court does not stop there. Under USRAP, it applies the 90-year wait-and-see period. Given ordinary human life spans, it’s overwhelmingly likely that any grandchild — even one born after the trust’s creation — will actually turn 30 well within 90 years. The gift is valid under Cal. Prob. Code § 21205. If, in some unusual scenario, it still wouldn’t vest in time, the court could apply cy pres — for instance, reducing “age 30” to “age 21” — to save the grantor’s core intent rather than voiding the trust entirely.
Traditional RAP vs. California’s Modern Approach
| Feature | Traditional Common-Law RAP | California’s Modern Approach |
|---|---|---|
| Test applied at | Moment of creation, worst-case hypothetical | Creation, plus a 90-year actual-vesting window |
| Governing authority | Common law | Cal. Prob. Code §§ 21200–21231 |
| Fallback if both tests fail | None — interest is void | Cy pres reformation |
| Typical result for realistic gifts | Frequently void on remote hypotheticals | Usually saved under the 90-year track |
Common Mistakes
- Stopping at “void ab initio.” On a California essay, never end the analysis there — always layer on the 90-year USRAP track and consider cy pres.
- Treating wait-and-see and the 90-year rule as the same thing. Wait-and-see (Second Restatement) looks at what actually happens with no fixed outer limit tied to a statute; California’s USRAP adds a specific 90-year statutory backstop on top of the traditional test.
- Treating the 90-year period as a replacement for traditional RAP. It’s an alternative, independent track — an interest is saved if it satisfies either the traditional test or the 90-year window, not only the latter.
- Overusing cy pres. It only kicks in once an interest has failed both the traditional test and the 90-year window — it isn’t a first-resort fix.
FAQ
Has California abolished the traditional common-law Rule Against Perpetuities?
No. California layers USRAP’s 90-year savings period on top of the traditional test rather than replacing it. An interest is valid if it satisfies either the traditional common-law analysis or actually vests within 90 years.
What’s the difference between wait-and-see and California’s 90-year rule?
Wait-and-see generally means postponing judgment until the measuring life ends and asking what actually happened. California’s USRAP implements a specific, statutory version of that idea by adding a fixed 90-year alternative vesting period under Cal. Prob. Code § 21205.
When does a California court apply cy pres to a perpetuities problem?
Only after an interest fails both the traditional common-law test and the 90-year USRAP window. At that point, the court may reform the instrument — for example, lowering a vesting age — to come as close as possible to the grantor’s intent while complying with RAP.
Key Takeaways
- The traditional common-law RAP tests validity against a worst-case hypothetical at the moment of creation.
- Wait-and-see instead asks what actually happens, evaluated at the end of the measuring life.
- California’s USRAP (Cal. Prob. Code §§ 21200–21231) adds an independent 90-year savings period on top of the traditional test.
- Cy pres reformation is the last-resort backstop when an interest fails both tracks.
- Never end a California RAP essay analysis at “void ab initio” — always address the 90-year rule and cy pres before concluding.
Related guides
- the rule against perpetuities in California
- vested remainder subject to open and class gifts
- executory interests, shifting and springing
Sources and further reading
- Cal. Prob. Code § 21205 (90-year statutory savings period)
- Cal. Prob. Code § 21200 (Uniform Statutory Rule Against Perpetuities, general provisions)
This article is educational and is not legal advice. Consult a licensed California attorney about your situation.