2018] TRANSFER ON DEATH DEEDS 483
fact, historically there have been cases that hold that where a life estate is
granted, reserving the absolute power of disposal in the life tenant, the
gift over to the remainderman at the death of the life tenant is actually
void.
128
However, all jurisdictions that previously held this view have
since resolved that the remainder that follows is valid.
129
The beneficiary
or remainder interest resulting from an enhanced life estate deed has been
referred to as a vested remainder subject to total divestment,
130
but has
also been categorized as a contingent remainder, or possibly just an
expectancy interest. This Note does not seek to get into the future interest
weeds, but merely to emphasize the distinction between whether that
interest should be considered vested or contingent.
131
Regardless of what
one labels the remainder interest, if the life tenant does not subsequently
convey the fee title to the property during her lifetime, the fee title to the
property will vest fully in the remainder beneficiary upon the life tenant’s
death.
132
However, the importance of the distinction between whether the
interest is vested or contingent is in determining when the property
interest actually passes—upon execution of the deed or upon death of the
life tenant. In other words, the question is whether the remainder
beneficiary has any interest in the property so long as the life tenant is
alive. This distinction can be critical, especially in circumstances where
the remainderman dies before the life tenant.
133
128. 3 SIMES AND SMITH,THE LAW OF FUTURE INTERESTS § 1488 (3d ed. 2016) (discussing
how this position was the minority position and how the legislature has enacted legislation to
seemingly bring their states in line with the majority position).
129. Id.
130. Frank, supra note 97, at 31 (referencing a definition provided by Gerry W. Beyer,
Governor Preston E. Smith Regents, Professor of Law, Texas Tech University School of Law);
see also Suzanne M. Barry, Enhanced Life Estates Deed Growing in Popularity, in T
HE TITLE
CORNER (Old Republic Nat’l Title Ins. Co., Tampa, Fla.), Jan.–Mar. 2016, at 4, 4.
131. Stephen L. Mackey, Fund Insures Enhanced Life Estates: Fund Insurability of Life
Estate Deeds with Enhanced Powers in the Life Estate Holders Results in Better Tricks from an
Old Dog!,F
UND CONCEPT, Aug. 1999, at 124, 124 (“A vested remainder and a vested remainder
subject to divestment are actual estates in property. A remainder is vested if there is a present right
to future possession even though that present right may be eliminated by some future event. When
a present right may be eliminated by the occurrence of some future contingency, then that
remainder is vested subject to divestment. Alternatively, a contingent remainder takes effect on
the occurrence of an event that may or may not occur prior to the termination of the preceding
estate. With a vested remainder there is uncertainty as to whether the estate will even be enjoyed
in possession. With a contingent remainder, the right to the actual estate is uncertain.”).
132. See supra Section I.B.
133. If the remainder beneficiary’s interest is considered vested at the time of the enhanced
life estate deed, then the remainder beneficiary’s interest will pass to the remainder beneficiary’s
heirs or devisees. See In re Estate of Martin, 110 So. 2d 421, 422 (Fla. Dist. Ct. App. 1959);
However, if the remainder beneficiary’s interest is considered contingent, then title will not pass
to the remainder beneficiary’s estate. See In re Travis v. Ashton, 23 So. 2d 725, 727 (Fla. 1945).
15
Emrick: Transfer on Death Deeds: It Is Time to Establish the Rules of the
Published by UF Law Scholarship Repository,