Gifts Causa Mortis Lawyers

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What is a Gift Causa Mortis?

A gift causa mortis is a gift of personal property made in expectation of the donor's death (the person giving the gift).  In order to be a gift causa mortis, four conditions must be met:

The donor must intend to make an immediate transfer of ownership to the donee.

The gift must be delivered to the donee (the person receiving the gift).  If manual delivery is impossible or impractical, then symbolic or constructive delivery may be used.  By doing so, the donor relinquishes his ownership to the property.

The donee must accept the gift.  Generally, Courts will presume acceptance of a gift if it is unconditional or valuable to the donee.

The donor must be acting out of the fear of impending or imminent death.  The donor cannot merely have a general apprehension of future death.

How Does a Gift Causa Mortis Differ From Traditional Gifts?

Unlike a  gift inter vivos (a gift between living people), gifts causa mortis are both conditional and revocable.  The donor may unilaterally choose to revoke the gift at any time.  Additionally, the gift is either revoked, or revocable at the donor's discretion, if they survive the danger that caused them to make the gift.  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.

Gifts causa mortis also differ from gifts during life in that they are taxed under federal estate tax law as if they were gifts bequeathed in a will.  This is 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.  Thus, you should consider your options if you are seeking to avoid probate.

Do I Need a Lawyer for my Gift Causa Mortis Problem?

Property law is very complex and can be confusing, especially surrounding gifts.  An experienced property attorney would be able to advise you on whether the gift causa mortis that you gave or received was valid.  A probate attorney would be able to help you choose other alternatives such as trusts or gifts inter vivos that may help avoid probate.

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Last Modified: 06-30-2009 12:28 PM PDT

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