Also known as: inter-vivos · intervivos · between the living
Written by attorneys — see sources below.
A Latin phrase describing transfers of property made during the lifetime of the transferor. Such transfers take effect immediately and are distinguished from testamentary dispositions that occur only upon death.
Isaac created a revocable trust during his lifetime and later executed a will leaving his remaining assets to that trust. Upon his death the executor added the probate assets to the trust under the will's pour-over clause. The inter vivos trust already existed and held title to other property before Isaac died.
Imani, domiciled in State A, executed a deed conveying land located in State B to her niece. When a dispute later arose over the deed's validity, the court applied the law of the state with the most significant relationship to the inter vivos transfer and the parties. The deed had been negotiated and delivered entirely in State A.
Van Pelt handed several pieces of jewelry to his housekeeper while both were alive and told her the items were hers. After his death the administrator sued to recover the jewelry, claiming the transfer was ineffective. The court examined whether the inter vivos delivery satisfied the requirements for a completed gift.
J. F. Van Pelt resided in Statesville, North Carolina. His wife died about ten years before his own death without issue. After her death, Van Pelt employed the plaintiff, an orphan then about eighteen years old, to serve as his housekeeper. She remained in his service for ten years until his death and occupied rooms assigned to her in his residence. In 1895, Van Pelt declared his purpose to marry the plaintiff within twelve months, and no one else resided in the house with them. About the last day of March 1896, Van Pelt was stricken with paralysis and confined to his bed in his house. He was never able to leave his bed again until his death on April 12, 1896. Shortly after being stricken, he sent for Enos Houston to nurse him during his last illness. While helpless in bed and in extremis, Van Pelt asked Houston to call the plaintiff into his room. He then requested his private keys, which the plaintiff retrieved from a place over the mantel in his bedroom at his direction, and handed the bunch of keys to her, stating that he desired her to have them and everything in the house. Van Pelt pointed out the bureau, the clock, and other articles of furniture in the house. He asked that his chamber door be opened and pointed toward the hall and other rooms while repeating that everything in the house was hers and that he wanted her to have it. The keys included one that unlocked the bureau drawer containing a life insurance policy for $3,000 payable to Van Pelt's estate along with other valuable papers. Plaintiff kept the keys as directed and still possessed them at the time of trial. Immediately after Van Pelt's death, Houston informed Mr. Burke of the donation, and the plaintiff also informed her attorney of her claim to the property while keeping the keys and forbidding the defendant from interfering. The defendant, as administrator of Van Pelt's estate, collected the $3,000 on the life insurance policy and sold the household and kitchen furniture. The plaintiff brought suit against the defendant administrator to recover the value of the policy, $200.94 for household property sold, $45 for property from her bedroom that was sold, and $300 in insurance money collected on a piano. A verdict was returned in favor of the plaintiff, followed by judgment, from which the defendant appealed.
View caseA settlor created a Delaware trust granting his wife a general power to appoint the corpus during her lifetime. After the settlor moved to Florida and died, Florida courts addressed whether the wife's exercise of the inter vivos power controlled distribution of the trust assets. Delaware courts upheld the trust terms against the Florida probate decree.
In 1935 Dora Browning Donner, then a domiciliary of Pennsylvania, executed a trust instrument in Delaware naming the Wilmington Trust Company as trustee. The corpus consisted of securities. Mrs. Donner reserved the income for life and retained a power of appointment over the remainder exercisable by inter vivos deed or will. She also retained the rights to amend, alter, or revoke the agreement, to change the trustee, and to require the consent of a trust advisor she appointed for sales of assets, investments, and participation in reorganizations. In 1944 Mrs. Donner became domiciled in Florida and remained there until her death in 1952. On December 3, 1949, while in Florida, she executed both her will and an inter vivos power of appointment. The appointment directed $200,000 to each of two trusts benefiting her grandchildren Donner Hanson and Joseph Donner Winsor, with the balance appointed to her executrix. Mrs. Donner died on November 20, 1952. Her will was admitted to probate in Florida, naming Elizabeth Donner Hanson as executrix. Fourteen months after the death, residuary legatees Katherine N. R. Denckla and Dorothy B. R. Stewart petitioned a Florida chancery court for a declaratory judgment concerning property passing under the residuary clause. Personal service was made on the executrix and beneficiaries. Nonresident defendants including the Wilmington Trust Company and the Delaware Trust Company were served by ordinary mail and local publication under Florida statutes. The Delaware trustee did not appear. After the Florida suit began, the executrix filed a declaratory judgment action in Delaware to determine rights to the trust assets held there. All trust companies and most beneficiaries appeared in the Delaware proceeding. The Florida chancellor initially ruled he lacked jurisdiction over the nonresident trustees because no personal service had been made and the trust corpus was outside Florida. He proceeded as to appearing parties and held the power of appointment testamentary and void under Florida law, so that the $400,000 passed under the residuary clause. The Delaware Chancellor ruled the trust and appointment valid under Delaware law and that the corpus had been properly paid to the appointees. The Florida Supreme Court reversed the jurisdictional ruling, held Florida law applied, and affirmed that the trust was invalid and the appointment ineffective. The Delaware Supreme Court affirmed its own judgment and refused to accord full faith and credit to the Florida decree. The United States Supreme Court postponed the question of jurisdiction in the Florida appeal and granted certiorari to the Delaware Supreme Court. Both state supreme court judgments are before the Court.
View caseOwners of fractionated Indian land could have transferred their interests to consolidate holdings before death. Because they retained the property until death, the statute restricted testamentary disposition. The Court noted that the owners' ability to make inter vivos transfers did not eliminate the taking claim arising from the testamentary restriction.
In the late 19th century, Congress enacted a series of land acts that divided communal Indian reservations into individual allotments for Indians and unallotted lands for non-Indian settlement. The Act of March 2, 1889, allotted 320 acres to each male Sioux head of household and 160 acres to most other individuals on the Great Reservation of the Sioux Nation, with the allotted lands held in trust by the United States. Ownership of these allotted lands fragmented over successive generations into numerous undivided interests, with some parcels having hundreds of owners. Because the land was held in trust and often could not be alienated or partitioned, the fractionation problem grew over time. This created administrative difficulties and economic waste. A 1928 report and comprehensive 1960 House and Senate studies indicated that one-half of approximately 12 million acres of allotted trust lands were held in fractionated ownership. In 1983, Congress enacted the Indian Land Consolidation Act. Section 207 provided that no undivided fractional interest in any tract of trust or restricted land within a tribe's reservation shall descend by intestacy or devise but shall escheat to the tribe if such interest represents 2 per centum or less of the total acreage in such tract and has earned to its owner less than $100 in the preceding year before it is due to escheat. The provision was signed into law on January 12, 1983, and became effective immediately, with no compensation provided to owners of escheated interests. Four enrolled members of the Oglala Sioux Tribe died in 1983 while owning fractional interests subject to the escheat provision. Chester Irving died on March 18, Mary Poor Bear-Little Hoop Cross died on March 23, Charles Leroy Pumpkin Seed died on April 2, and Edgar Pumpkin Seed died on June 23. Collectively the four decedents owned 41 such interests whose values included approximately $100 for the two interests lost by the Irving estate, approximately $2,700 for the 26 interests in the Cross estate, and approximately $1,816 for the 13 interests in the Pumpkin Seed estates. The three appellees are enrolled members of the Oglala Sioux Tribe who are or represent heirs or devisees of the decedents. Mary Irving is the daughter of Chester Irving, Eileen Bissonette is the guardian for the five minor children of Mary Poor Bear-Little Hoop Cross, and Patrick Pumpkin Seed is the son of Charles Leroy Pumpkin Seed and nephew of Edgar Pumpkin Seed. But for the escheat provision the fractional interests would have passed to the appellees or those they represent. Appellees filed suit in the United States District Court for the District of South Dakota claiming that the escheat provision resulted in a taking of property without just compensation in violation of the Fifth Amendment. The District Court granted summary judgment for the Government. The Court of Appeals for the Eighth Circuit reversed. The Supreme Court granted certiorari.
View caseA husband created a revocable inter vivos trust for his wife that also granted her a general testamentary power of appointment. After his death the executor claimed a marital deduction for the trust corpus. The Court examined whether the wife's power converted the trust into qualifying property for the deduction.
In 1930 a New York resident created a revocable trust that was amended in 1931. The trust directed income from the corpus to his wife for life. It also granted her a general power of appointment. In default of appointment half the corpus passed to the decedent's heirs and half to the wife's heirs. In 1951 the wife executed an instrument that purported to release the general power and convert it into a special power. The decedent died in 1957. His estate claimed a marital deduction for the widow's trust on the federal estate tax return. The Commissioner disallowed the deduction under section 2056(b)(5) of the 1954 Code and assessed a deficiency. The estate petitioned the Tax Court for redetermination. While that proceeding was pending the estate obtained a New York Supreme Court decree declaring the 1951 release a nullity. The Tax Court accepted the decree as controlling and allowed the deduction. A divided Second Circuit affirmed. The companion case involved the estate of a Connecticut decedent who died in 1958. His will directed payment of estate taxes without proration and created a residuary trust granting his wife a general testamentary power of appointment. The Commissioner disallowed part of the marital deduction. The executor then obtained a probate court order applying the state proration statute. The District Court refused to treat the probate decree as binding on federal tax questions. The Second Circuit agreed the decree was not conclusive. The two cases reached the Supreme Court after the Second Circuit panels reached differing conclusions on the effect of the state decrees. Certiorari was granted to resolve the conflict among the circuits.
View caseAn inter vivos transfer takes effect immediately during the donor's life. A testamentary transfer occurs only upon death through a will or intestacy. The distinction determines whether probate is required and which formalities apply.
Yes. A pour-over devise adds property to an existing inter vivos trust or funds a trust whose terms were executed during the testator's lifetime. The trust must have independent significance apart from the will.
The law of the state with the most significant relationship to the land and the parties governs. For immovables the situs state usually supplies the applicable rule because property rules protect local expectations and title records.
The donor must intend to make a present gift and deliver the property. Actual physical delivery satisfies the requirement. Constructive or symbolic delivery may suffice when actual delivery is impractical.
Supporting sources
A statute that eliminates the right to pass property at death works a taking even if owners could have transferred the property during life. The inter vivos option does not restore the right to direct succession that the statute removed.
Supporting sources
…Other claimants, "appointees" and "beneficiaries," contend that the property passed pursuant to the settlor's exercise of the inter vivos power of appointment created in the deed of trust. The Delaware courts adopted this position and refused to accord full faith and credit to the Florida determination because the Florida…