Also known as: gestation period · gestation
Written by attorneys · grounded in primary & secondary sources — see below
A temporal interval during which a child develops in the womb. Under the rule against perpetuities any such interval is added to the lives-in-being-plus-twenty-one-years period when determining whether an interest must vest or fail.
Leah deeds an office building to City Hope Foundation in trust for descendants employed by nonprofits twenty years after the last director serving at her death. The deed expressly accounts for any resulting period of gestation before measuring the survivorship of a niece's child. A court testing the interest under the rule against perpetuities includes the gestational interval when calculating whether the gift must vest or fail.
Leroy grants Swift Gas an option exercisable before twenty-one years after the death of the last shareholder alive on the deed date. The deed adds that any unexercised option passes to the first great-grandchild alive or in gestation at the death of Leroy's last sibling. A court evaluating the option period counts the gestational interval when fixing the measuring lives.
Select any source to read its text and confirm it supports the definition.
An attorney drafts a trust providing that shares pass to employees working for the company thirty years after the settlor's death and then to their children who reach age thirty. The instrument makes no reference to any period of gestation. A malpractice claim arises when the gift is later held void because the vesting might occur outside lives in being plus twenty-one years without accounting for gestation.
Jacob dies leaving a daughter Viola already in the second trimester of pregnancy. Five months later Viola gives birth to a child who survives six days. The personal representative must decide whether the grandchild counts as living at Jacob's death. The court treats the child as alive during the period of gestation for intestacy purposes.
Jane Roe challenges Texas criminal abortion statutes. The state defends regulation after the first trimester by reference to fetal development during the period of gestation. The Court evaluates medical capability of survival outside the womb to determine when the period of gestation supports state interests.
A widow seeks social security benefits for twins conceived after her husband's death using frozen embryos. The agency denies the claim because the children were not in gestation at the time of death. The court holds that the period of gestation must have begun before death for the children to qualify as issue under the statute.
The rule counts any period of gestation when measuring lives in being plus twenty-one years. A child conceived before the measuring lives die but born afterward is treated as a life in being. This inclusion prevents the interest from being invalidated solely because birth occurs after the measuring lives have ended.
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Yes. The child must be born alive after the period of gestation. If the child is stillborn the gestational interval does not extend the perpetuities period. The rule therefore requires both conception before the measuring lives die and live birth.
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Yes. The Restatement expressly permits any period or periods of gestation involved in the situation. Successive generations may each contribute a gestational interval so long as the overall vesting remains within the permissible window measured from lives in being.
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A class closes physiologically at the death of the last parent. A child in gestation when the class closes is treated as in being and included if born viable. The gestational period therefore allows the child to take even though birth occurs after the class-closing event.
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…or condition whatever, for a period longer than 21 years after some life in being at the creation of the interest and any period of gestation involved in the situation to which the limitation applies. The lives selected to govern the time of suspension must not be so numerous or so situated that evidence of their deaths is likely…