Distinction between donation intervivos and donation mortis causa?

Answer 1

At the most basic level, the difference between a gift inter vivos and a gift causa mortis is apparent from the latin phrases' meanings:

• inter vivos - during life
• causa mortis - (literally) cause of death; (as used here) in contemplation of death

A gift inter vivos is a gift made during the donor's life. And a gift causa mortis is a gift made (presumably) near the end of the donor's life while the donor anticipates/fears his or her own imminent death.

To be a valid gift, the two types have different requirements.

A valid gift inter vivos requires:

1. the intent of the donor immediately to pass title (not necessarily possession) to the donee;
2. effective delivery of the property to the donee, which may be actual/physical delivery (e.g., handing over a watch); constructive delivery (e.g., giving the donee the combination to a safe that would be too impractical to physically hand over); or symbolic delivery (giving the donee the key to your Mercedes, or a piece of paper saying that you give the donee title to your art collection which is currently on loan to a local museum);
3. the donee's acceptance (this is normally implied by silence, and will only be negated by express rejection).

Importantly, once all three requirements are met, a valid gift inter vivos cannot be revoked by the donor.

A valid gift causa mortis requires:

1. donative intent (same as above);
2. delivery (same as above, except in many states symbolic delivery is ineffective for gifts causa mortis);
3. acceptance (same as above); and additionally,
4. the donor's anticipation, at the time of the gift, of imminent death;
5. the donor's actual death.

If the donor recovers, the gift is automatically revoked. Similarly, if the donee dies before the donor, the gift is revoked. And, unlike a gift inter vivos, the donor may always revoke the gift before she dies, even after the first four requirements above have been satisfied. Also distinguishing gifts causa mortis is the fact that they must be gifts of personal property; real property (interests in land, etc.) cannot be conveyed by gifts causa mortis.

State law will vary in some of the nuances, but this is a general sketch of the two types of gifts. The key difference, and the reason for keeping such an antiquated distinction, lies in the gifts' revocability. If the donor is certain that he or she wants to make the gift, an inter vivos gift provides the easier and more foolproof means. On the other hand, when one is in a gravely stressful situation, she may wish to make a gift of property she would otherwise want to keep. A gift causa mortis honors the dying donor's wishes, while also protecting the donor from regretting the gift should she change her mind or recover.