Also known as: inter vivos gift · intervivos gift · gift inter vivos
Written by attorneys — see sources below.
A completed lifetime transfer of property from a living donor to a donee that vests title immediately upon delivery and acceptance. The transfer stands as an independent gift unless a contemporaneous writing by the donor or a written acknowledgment by the donee expressly links it to reduction of a devise or intestate share.
Evelyn deeded a suburban duplex to her grandson Leo and handed him a printed letter stating the gift reduced what he would receive under her will. Leo signed the letter acknowledging receipt. After Evelyn died, the signed letter caused the duplex value to offset Leo's specific devise of the downtown building, leaving the residuary beneficiaries with the balance.
A husband transferred assets into a trust that left him full control during life. After his death his wife claimed the transfers were merely illusory attempts to defeat her elective share. The court examined whether the transfers were real inter vivos gifts that removed the property from the estate or retained so much dominion that they remained part of the husband's property at death.
Ferdinand Straus died on July 1, 1934, leaving a last will and testament dated May 5, 1934, which contained a provision for a trust for his wife for her life of one-third of the decedent’s property both real and personal. On June 28, 1934, three days before his death, he executed trust agreements by which, in form at least, he transferred to trustees all his real and personal property. The beneficiary named in the trust agreement brought this action to compel the trustees to carry out its terms. The widow challenged the validity of the transfer to the trustees. The trial court found that the trust agreements were made, executed and delivered by said Ferdinand Straus for the purpose of evading and circumventing the laws of the State of New York, and particularly sections 18 and 83 of the Decedent Estate Law. The trial court also found that the settlor reserved the enjoyment of the entire income as long as he should live, and a right to revoke the trust at his will, and in general the powers granted to the trustees were in terms made subject to the settlor’s control during his life.
View caseA lifetime transfer reduces the devise only when the testator provides a contemporaneous writing stating that the gift operates as satisfaction or the devisee acknowledges that effect in writing. Without such a writing the transfer remains a separate inter vivos gift that does not affect the will.
Supporting sources
An inter vivos gift stands alone and does not reduce an heir's intestate share unless the decedent's contemporaneous writing or the heir's written acknowledgment designates it as an advancement. Modern statutes reject any automatic presumption that large gifts to heirs are advancements.
Supporting sources
Either the testator's note or memo made at the time of the transfer stating the gift reduces the devise or the heir's signed acknowledgment that the transfer is part of an expected inheritance meets the requirement. Vague language or later oral statements do not substitute for the required writing.
Supporting sources
…divest himself of the ownership of the property. It is, therefore, apparent, that the fraudulent interest which will defeat the gift inter vivos cannot be predicated of the husband’s intent to deprive the wife of her distributive share as widow.” ( Benkart v. Commonwealth Trust Co. , 269 Penn. St. 257, 259.) In Pennsylvania the…