A gift is a transfer of property without any money changing hands. The person who makes the gift is called the donor. The recipient is called the donee. The requirements of a valid gift are that the donor voluntarily intends to give property, which is delivered to and accepted by the donee.
Donative intent requires that the donee be given immediate ownership of the property.
The donor must intend to presently deliver the gift to the donee. This can be accomplished by actual physical delivery, but that is not always required. Constructive delivery is allowed when it is impractical to actually deliver the physical property. In such an event, the donor may simply provide the means for the donee to obtain possession of the property. For example, a donor can constructively deliver a gift of real estate by delivering the key. However, if there is more than one key and the donor has retained one, courts are divided as to whether there has been a sufficient relinquishment of control by the donor to satisfy the delivery requirement. A donor can validly deliver property to a third person to hold for the benefit of the donee.
Acceptance is the last of the requirements for a valid gift, although a donee has the right to refuse the gift after delivery.
Types of Gifts
A gift can be made during a donor’s lifetime or at death. The gift that is made while the donor is alive is called an inter vivos gift. To be a valid inter vivos gift, the gift must be made at a time when the donor is not suffering from a terminal disease or other condition that he or she would consider life-threatening. Once the inter vivos gift is made, it is irrevocable.
A gift that is made in contemplation of death is called a gift causa mortis. The donor of a gift causa mortis can revoke that gift if he or she recovers from the life-threatening disease or condition.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.