Unconstitutional Perpetual Trusts

Steven J. Horowitz

Sidley Austin LLP

Robert H. Sitkoff

Harvard Law School

August 8, 2014

67 Vanderbilt Law Review, Forthcoming
Harvard Public Law Working Paper No. 14-27

Perpetual trusts are an established feature of today’s estate planning firmament. Yet little-noticed provisions in the constitutions of nine states, including in five states that purport to allow perpetual trusts by statute, proscribe “perpetuities.” This Article examines those provisions in light of the meaning of “perpetuity” as a legal term of art across history. We consider the constitutionality of perpetual trust statutes in states that have a constitutional ban on perpetuities and whether courts in states with such a ban may give effect to a perpetual trust settled in another state. Because text, purpose, and history all suggest that the constitutional perpetuities bans were meant to proscribe entails, whether in form or in function, and because a perpetual trust is in purpose and in function an entail, we conclude that recognition of perpetual trusts is prohibited in states with a constitutional perpetuities ban.

Number of Pages in PDF File: 54

Keywords: perpetuities, perpetuity, entail, fee tail, jurisdictional competition, state constitution, perpetual trust, dynasty trust

JEL Classification: K11, K34

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Date posted: June 18, 2014 ; Last revised: November 22, 2014

Suggested Citation

Horowitz, Steven J. and Sitkoff, Robert H., Unconstitutional Perpetual Trusts (August 8, 2014). 67 Vanderbilt Law Review, Forthcoming; Harvard Public Law Working Paper No. 14-27. Available at SSRN: https://ssrn.com/abstract=2451083

Contact Information

Steven J. Horowitz
Sidley Austin LLP ( email )
One First National Plaza
Chicago, IL 60603
United States
Robert H. Sitkoff (Contact Author)
Harvard Law School ( email )
1575 Massachusetts Avenue
Cambridge, MA 02138
United States
(617) 384-8386 (Phone)
(617) 812-6195 (Fax)
HOME PAGE: http://www.law.harvard.edu/faculty/directory/facdir.php?id=649

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