Definition
*Nascitur* (variant form: *nasciturus*) is a Latin term meaning "that which shall hereafter be born" — referring to a child not yet conceived or born at the time a legal instrument takes effect. In the law of marriage settlements and trusts, it designates future issue of a marriage as a class of potential beneficiaries, as distinguished from children already living at the time the instrument is executed.
The term operates as a placeholder in dispositive instruments, allowing a settlor or testator to extend benefits to children who do not yet exist but who may be born into the family after the instrument is made. Its function is prospective: it anticipates a class rather than identifying specific persons.
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Common Confusion
NASCITURUS vs. NATUS: These paired Latin terms are frequently encountered together in historical settlement drafting and must be read in contrast. *Natus* refers to a child already born; *nasciturus* refers to a child yet to be born. A settlement provision might provide for "children whether *nati* or *nascituri*" to capture both existing and future issue. Conflating the two distorts the intended class of beneficiaries and may affect whether vesting rules, class-closing doctrines, or cy-pres analysis apply.
NASCITURUS vs. EN VENTRE SA MÈRE: These terms address related but distinct concepts. *En ventre sa mère* (a child in the womb) describes a child already conceived but not yet born — a legal person for certain limited purposes under the born-alive fiction. *Nasciturus* in settlement usage reaches further, encompassing children not yet conceived at all. Researchers should not treat these as synonyms.
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Why It Matters in Research
This is a term of art that appears almost exclusively in historical English marriage settlements, trust instruments, and equity practice. Researchers working in the Law Mind corpus should note several navigational points.
First, the term is essentially obsolete in modern drafting. Contemporary instruments use plain-English equivalents — "issue," "children born of the marriage," "afterborn children" — rather than Latin placeholders. Encountering *nasciturus* in a source almost always signals a pre-twentieth-century instrument or a treatise discussing such instruments.
Second, the term intersects with the Rule Against Perpetuities in ways that generated significant historical litigation. Settlements providing for *nascituri* as a class raised questions about when interests vested, whether the class remained open too long, and whether the RAP voided gifts to unborn members. Any research into perpetuities doctrine in equity should treat *nasciturus* as a trigger term pointing toward class gift analysis.
Third, in Scottish and civilian-influenced legal traditions, *nasciturus* also appears in a broader maxim — *nasciturus pro iam nato habetur* ("one about to be born is regarded as already born") — which is a distinct doctrine used to protect the interests of conceived but unborn children. This civilian usage is not the same as the English settlement usage recorded in Black's. Researchers using mixed common law and civil law sources must be alert to this divergence in application.
Fourth, corpus searches for this term may return sparse results precisely because it was a drafter's term of art largely confined to a specific genre of instrument (Chancery-supervised marriage settlements) during a bounded historical period. Absence from a source does not mean the underlying concept is absent — look also for "issue born of the marriage," "children thereafter to be born," and "afterborn issue."
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Historical Dictionary Support
Black's Law Dictionary (2nd Ed.) defines *nasciturus* concisely as "[t]hat shall hereafter be born," situating it explicitly in the context of marriage settlements and contrasting it with *natus*. This entry captures the term's functional core accurately.
What Black's does not address — and what researchers should supply from other sources — is the term's role in the broader civilian maxim *nasciturus pro iam nato habetur*, which carries a different doctrinal weight in succession law and tort contexts. The settlement-drafting sense and the born-alive-fiction sense are both legitimate legal uses of the Latin root, but they serve different analytical purposes and arise in different procedural postures. Historical dictionaries of this era generally recorded only the common law settlement meaning without flagging the civilian alternative.
No divergence among available historical sources on the core definition; the narrowness of coverage reflects the term's specialized usage rather than any genuine dispute.
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Jurisdictional Note
The term in its settlement-drafting sense is predominantly English in origin, reflecting Chancery practice. American law absorbed the concept through equity jurisprudence but largely through plain-English equivalents. Civil law jurisdictions use the *nasciturus* maxim in a distinct doctrinal context relating to the legal capacity of unborn persons — relevant in Louisiana, Quebec, and comparative law research.
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