In property law, a fee tail is a freehold estate that allows family lands to remain intact through generations by limiting inheritance to the principal lineal descendants of the grantor. The most typical form of this estate requires that possession be conveyed from eldest son to eldest son for as long as the bloodline continues. This estate cannot be divided and sold, nor can it be conveyed to anyone who is not the principal lineal descendant. This was a crucial freehold estate for medieval England’s landed aristocracy because it was an effective means of preserving the family’s prestige and wealth for generations. The fee tail was abolished in England in 1925 and is nearly extinct in the United States.
Freehold estates emerged after the adoption of the statute of Quia Emptores in England in 1290. Under the feudal system, multiple people, such as a lord and his tenant, could simultaneously have rights in one parcel of land. Quia Emptores granted tenants the right to transfer their land without their lord’s permission, thus marking the beginning of free alienability. Freehold estates, including the fee simple, the life estate, and the fee tail, developed as a result and were usually held by the nobility. These freehold estates can be distinguished by their respective durations.
A fee tail is created when the grantor conveys the estate to a known person and the heirs of his body. “The heirs of his body” are the words of limitation necessary to create this type of estate as a matter of law. These words of limitation can specify male heirs or heirs parented by or descended from a particular person. In theory, it is possible to create a fee tail female, although there are no extant examples of this type of fee tail estate.
A holder of this kind of estate has only a limited right to transfer the estate. The holder can alienate his or her possessory rights only as long as he or she is alive. Upon the holder’s death, the estate would pass to the lineal heir regardless of who is in actual possession. As a result, this becomes a powerful legal tool for preserving an estate and ensuring that it remains in the immediate family bloodline.
It is possible to undo a fee tail by converting the estate into a fee simple. This is normally done via an inter vivos transfer to another person. This process is called disentailing the tail. If the bloodline ends, then the estate reverts back to the original grantor or his or her heirs.
In the 18th century, the newly independent United States adopted most of the English property law system, but some saw this particular kind of estate as a threat to democratic values and an obstacle to freedom of alienation. Thomas Jefferson, for example, fought to abolish the fee tail in Virginia because he saw the estate as facilitating the perpetuation of a landed aristocracy in the new country. This estate was abolished in England in 1925 in part because land owners could no longer afford to maintain the large estates they had inherited but were prohibited from dividing and selling. As of 2011, only four states continue to recognize this estate in America: Delaware, Maine, Massachusetts, and Rhode Island.
