A. A nonvested property interest is invalid unless:

(1) when the interest is created, it is certain to vest or terminate no later than twenty-one years after the death of an individual then alive; or

(2) the interest either vests or terminates within ninety years after its creation.

B. A general power of appointment not presently exercisable because of a condition precedent is invalid unless:

(1) when the power is created, the condition precedent is certain to be satisfied or to become impossible to satisfy no later than twenty-one years after the death of an individual then alive; or

(2) the condition precedent either is satisfied or becomes impossible to satisfy within ninety years after its creation.

C. A nongeneral power of appointment or a general testamentary power of appointment is invalid unless:

(1) when the power is created, it is certain to be irrevocably exercised or otherwise to terminate no later than twenty-one years after the death of an individual then alive; or

(2) the power is irrevocably exercised or otherwise terminates within ninety years after its creation.

D. In determining whether a nonvested property interest or a power of appointment is valid under each Paragraph (1) of Subsections A, B and C of this section, the possibility that a child will be born to an individual after the individual's death shall be disregarded.

E. If, in measuring a period from the creation of a trust or other property arrangement, language in a governing instrument (i) seeks to disallow the vesting or termination of any interest or trust beyond, (ii) seeks to postpone the vesting or termination of any interest or trust until or (iii) seeks to operate in effect in any similar fashion upon, the later of (1) the expiration of a period of time not exceeding twenty-one years after the death of the survivor of specified lives in being at the creation of the trust or other property arrangement or (2) the expiration of a period of time that exceeds or might exceed twenty-one years after the death of the survivor of lives in being at the creation of the trust or other property arrangement, that language is inoperative to the extent it produces a period of time that exceeds twenty-one years after the death of the survivor of the specified lives.

History: 1978 Comp., § 45-2-1001, enacted by Laws 1992, ch. 66, § 1; recompiled as 1978 Comp., § 45-2-901 by Laws 1993, ch. 174, § 66; 2011, ch. 124, § 34.

Official comments. — See Commissioners on Uniform State Law official comment to 2-901 UPC.

Repeals. — Laws 1993, ch. 174, § 84 repealed former 45-2-901 NMSA 1978, as enacted by Laws 1975, ch. 257, § 2-901, relating to the deposit of a will with the court in the testator's lifetime, effective July 1, 1993. For provisions of former section, see the 1992 NMSA 1978 on NMOneSource.com.

The 2011 amendment, effective January 1, 2012, in Subsection E, rewrote the rule for determining when the language of a trust or other property arrangement is inoperative because it prevents the vesting or termination of an interest beyond twenty-one years after the death of the survivor of the lives specified in the trust or other property arrangement.

Rule of perpetuities relates only to future interest in property. Price v. Atlantic Ref. Co., 1968-NMSC-180, 79 N.M. 629, 447 P.2d 509.

Rule of perpetuities not violated by present interest. — Where the royalty retained is real property, a present interest in the minerals in and under the land, the rule against perpetuities was not violated. Price v. Atlantic Ref. Co., 1968-NMSC-180, 79 N.M. 629, 447 P.2d 509.

Warranty deed not in violation of rule against perpetuities. Gartley v. Ricketts, 1988-NMSC-067, 107 N.M. 451, 760 P.2d 143.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 61 Am. Jur. 2d Perpetuities and Restraints on Alienation §§ 2, 6 et seq.

Perpetual lease or covenant to renew lease perpetually as violation of rule against perpetuities or the suspension of the power of alienation, 3 A.L.R. 498, 162 A.L.R. 1147.

Cemetery lot, devise or bequest for upkeep of as a violation of rule against perpetuities, 4 A.L.R. 1124, 14 A.L.R. 118.

Postponing distribution until payment of debts or settlement of estate, as violating rule against perpetuities, 13 A.L.R. 1033.

Rule against perpetuities as affecting limitation over to charity after a gift of indefinite duration to another charity, 30 A.L.R. 594.

Business trust as affected by rule against perpetuities, 58 A.L.R. 521, 156 A.L.R. 22.

Lease for term of years, or contract therefor, as violating rule against perpetuities, 66 A.L.R. 733.

Doctrine as to possibility of issue extinct as affecting rule against perpetuities, 67 A.L.R. 546, 98 A.L.R.2d 1285.

Reverter or breach of condition subsequent, applicability of rule against perpetuities to, 70 A.L.R. 1196, 133 A.L.R. 1476.

Violation of rule against perpetuities, or unlawful restraint of alienation or suspension of ownership, by postponement of vesting or alienation of ownership until exercise of discretion as to sale or disposal, 89 A.L.R. 1036.

Provision which suspends vesting of estate or interest for fixed period upon condition or with qualification that period shall not be longer than lifetime of person or persons in being at death of testator as violation of rule against perpetuities, 91 A.L.R. 771.

Validity of appointment under power with reference to rule against perpetuities, 101 A.L.R. 1282, 104 A.L.R. 1352.

Distinction as regards rule against perpetuities between time of vesting of future estate and time fixed for enjoyment of possession, 110 A.L.R. 1450.

Gifts to class conditional upon specified age being attained, 155 A.L.R. 698.

Validity of Massachusetts trusts as affected by rule against perpetuities, 156 A.L.R. 22.

Restraint upon voluntary alienation of legal life estate, 160 A.L.R. 639.

Prior estate as affected by remainder void for remoteness, 168 A.L.R. 321.

Gifts to charity as affected by conjoined noncharitable gift invalid under rule or statute against perpetuities or rule against accumulations, 170 A.L.R. 760.

Rule limiting duration of restraints on alienation as applicable to covenant in deed restricting use of property, 10 A.L.R.2d 824.

Validity, as for a charitable purpose, of trust for dissemination or preservation of material of historical or other educational interest or value, 12 A.L.R.2d 849, 34 A.L.R.4th 419.

Validity, under rule against perpetuities, of gift in remainder to creator's great grandchildren, following successive life estates to children and grandchildren, 18 A.L.R.2d 671.

Validity of provision of will or conveyance limiting alienation to certain individuals or those of a limited class, 36 A.L.R.2d 1437.

Validity of restraint on alienation, of an estate in fee, ending not later than expiration of a life or lives in being, 42 A.L.R.2d 1243.

Option created by will to purchase real estate, 44 A.L.R.2d 1214, 13 A.L.R.4th 947.

Application of rule against perpetuities to limitation over on discontinuance of use for which premises are given or granted, or the commencement of a prohibited use, 45 A.L.R.2d 1154.

Postponement of enjoyment of interest as affecting validity of perpetual nonparticipating royalty interest in oil and gas under rule against perpetuities, 46 A.L.R.2d 1268.

Separability for purpose of rule against perpetuities of gifts to several persons by one description, 56 A.L.R.2d 450.

Rule against perpetuities where estate is limited on alternative contingencies, one within and one beyond the period allowed by vesting of estates, 98 A.L.R.2d 807.

Option to purchase as violation of rule against perpetuities, 66 A.L.R.3d 1294.

Radio or television aerials, antennas, towers, or satellite dishes or discs as within terms of covenant restricting use, erection, or maintenance of such structures upon residential property, 76 A.L.R.4th 498.

70 C.J.S. Perpetuities §§ 12 to 14.