Gifts Causa Mortis Laws
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What Is a Gift Causa Mortis?
A gift causa mortis is a gift of personal property made with the expectation that the person giving the gift will soon die. The gift can only come into action after the death of the donor. This is a form of a conditional gift and the gift can only be made if the donor anticipates death. A gift causa mortis is known as the deathbed gift because it is the classic example of a gift being given by a donor at the time of his or her death or in his or her deathbed.
What Is the Difference Between a Gift Causa Mortis and Inter Vivos Gift?
There are two differences between the effect of an inter-vivos gift and a gift causa mortis. Both differences involve revocation of the gift. The first difference is that gifts causa mortis are revocable. An inter-vivos gift is irrevocable. Once the gift is given to the donee, the donor has no rights in the property and cannot take back the gift. However, the donor can revoke a gift causa mortis at any time, for any reason until the donor is alive.
Therefore, while gifts causa mortis are actually completed upon the delivery and acceptance, the donee’s actual right to keep the gift is only secured once the donor dies. After the donor dies, the gift becomes irrevocable. Another difference between the two is that if the donor doesn't die, the gift causa mortis is automatically revoked.
What Qualifies as a Gift Causa Mortis?
In order to be a gift causa mortis, four conditions must be met:
- Intent: The donor must intend to make an immediate transfer of ownership to the person whom they wish to give the gift.
- Delivery: The gift must be delivered to the person receiving the gift. If personal delivery is impossible or impractical, then symbolic or constructive delivery will be sufficient. By doing so, the donor relinquishes their ownership to the property.
- Acceptance: The donee must accept the gift. Generally, courts will presume acceptance of a gift if it is unconditional or valuable.
- Anticipation of Imminent Death: The donor must be acting out of the a belief of impending or imminent death. The donor cannot merely have a general apprehension of dying at some point in the future.
How Does a Gift Causa Mortis Differ from Traditional Gifts?
Unlike a gift inter vivos, otherwise known as a "gift between living people," gifts causa mortis are both revocable and conditional. They also differ in tax implications.
- Revocable: The donor may unilaterally choose to revoke the gift at any time while they are still alive. Additionally, the gift is either revoked or revocable at the donor's discretion, if they wind up surviving the conditions that caused them to initially fear death.
- Conditional: The gift is also conditional on the donee surviving the donor. If the donee dies before the donor, then the gift is revoked and the donee's estate retains no interest in the property.
- Taxes: Gifts causa mortis also differ from other gifts in that they are taxed under federal estate tax law as if they were gifts bequeathed in a will. This is largely because a gift causa mortis is incomplete until the death of the donor. However, a gift inter vivos that is made within 3 years of death will also be taxed under the federal estate tax law.
Do I Need a Lawyer for My Gift Causa Mortis?
Property law is very complex and can be confusing, especially surrounding gifts. This is particularly true if you are considering options to avoid probate.
An property attorney can advise you on whether the gift causa mortis that you gave or received was valid, and what complications may arise. A probate attorney can help you choose other alternatives, such as trusts or gifts inter vivos, that may help avoid probate.
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Last Modified: 05-20-2016 12:51 PM PDT
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