§ 5.01 Gifts in Context [45-46]

 

The right to transfer property by gift is uniformly recognized as a fundamental right.  The rules governing gifts—once remarkably rigid—have been in transition for several decades.

 

§ 5.02 What Is a Gift? [46]

 

A gift is a voluntary, immediate transfer of property without consideration from one person (the donor) to another person (the donee).  The law recognizes two categories of gifts: the gift inter vivos and the gift causa mortis.

 

§ 5.03 Gifts Inter Vivos [46-52]

 

                        [A]       Intent

 

There are three requirements for a valid gift inter vivos: intent, delivery, and acceptance.  Turning to the first requirement, the donor must intend to make an immediate transfer of ownership to the donee.  See, e.g., Gruen v. Gruen, 496 N.E.2d 869 (N.Y. 1986). The statements and actions of the donor usually provide the best evidence of intent.  But if the donor intends the gift to take effect in the future, it is ineffective. 

 

                        [B]       Delivery

 

There are three main methods of delivery.  Traditionally, “delivery” connoted manual delivery, that is, the physical transfer of possession of the item to the donee.  Manual delivery is often impossible or impractical, however; all jurisdictions allow constructive delivery in this event.  Constructive delivery occurs when the donor physically transfers to the donee the means of obtaining access to and control over the object, most commonly by handing over a key.  Finally, symbolic delivery—physically transferring to the donee an object that represents or symbolizes the object—is permitted in many jurisdictions if manual delivery is difficult.

 

                        [C]       Acceptance

 

Finally, the donee must accept the gift.  Courts presume acceptance of a gift that is unconditional and valuable to the donee.

 

§ 5.04 Gifts Causa Mortis [52-53]

 

A gift causa mortis is a gift of personal property in anticipation of the donor’s imminently approaching death.  It requires all three gift inter vivos elements, plus a fourth element: the donor’s anticipation of imminent death. 

 

§ 5.05 Restrictions On Donor’s Autonomy [53-54]

 

In general, a donor is free to give his property away to anyone he chooses.  Statutory exceptions have eroded this rule in extreme situations.  For instance, most states restrict lifetime gifts by one spouse that are intended to nullify the property rights that the law accords to a surviving spouse.