What Is a Gift Causa Mortis?
A gift causa mortis (Latin for “because of death”) is a conditional gift of personal property made by a donor who reasonably anticipates imminent death from a known peril (for example, terminal illness or an expected fatal injury). The gift is intended to take effect only if the donor actually dies from that anticipated cause. It is sometimes called a “deathbed gift.”
Key takeaways
– A gift causa mortis is conditional on the donor’s impending death and only becomes irrevocable if the donor dies as anticipated.
– Essential elements: donor’s intent to give because of imminent death, delivery to the donee (actual, constructive, or symbolic), acceptance by the donee, and the donor’s subsequent death from the anticipated peril.
– If the donor survives, the gift is revoked automatically (or may be revoked by the donor while alive).
– The donee must survive the donor; if the donee dies first the gift generally fails.
– These gifts differ from inter vivos gifts (made during life and irrevocable once completed) and from testamentary transfers (wills/trusts).
– Tax and probate treatment can be complex; consult an attorney or tax advisor. (Source: Investopedia)
How a gift causa mortis works — the legal elements
Most jurisdictions recognize a causa mortis gift only when the following elements are present:
1. Actual intent because of impending death
– The donor must expressly (or clearly impliedly) intend to make a gift in contemplation of imminent death from a known peril.
2. Contemplation of imminent death
– The gift must be made because the donor believes death is imminent (e.g., on a deathbed or facing certain fatal condition).
3. Delivery to the donee
– Delivery can be:
– Actual delivery: handing the item to the donee;
– Constructive delivery: giving something that provides access to the item (e.g., keys, safe combinations);
– Symbolic delivery: handing an item that symbolically represents the gift (e.g., a note describing the gift).
– Delivery must be sufficient to transfer dominion or control to the donee.
4. Acceptance by the donee
– The donee must accept the gift (acceptance is generally presumed for beneficial gifts).
5. Death of the donor from the anticipated cause
– The gift completes and becomes irrevocable only if the donor actually dies from the condition or peril contemplated at the time of the gift.
How a gift causa mortis differs from similar transfers
– Versus a gift inter vivos (between living persons):
– Inter vivos gifts are intended to be immediate and, once properly delivered and accepted, are generally irrevocable.
– Causa mortis gifts are conditional and revocable while the donor is alive; they take effect only upon the donor’s death from the anticipated peril.
– Versus testamentary gifts (wills/trusts):
– Wills and trust dispositions are planned and executed under formal legal requirements and operate through probate or trust administration.
– Causa mortis gifts are extra-testamentary (outside the will) and can create disputes because they rely on less formal proof.
Tax and estate considerations
– Causa mortis gifts are often treated under estate tax rules similarly to testamentary bequests because the gift is not complete until the donor’s death. Tax treatment can be complex and depends on federal law and state law. Interactions between gifts made shortly before death and estate taxation can also be significant.
– Because tax consequences vary by situation, donors and beneficiaries should consult a tax professional or estate attorney for specific guidance. (Source: Investopedia)
Revocation and survival rules
– If the donor survives the peril or no longer believes death is imminent, the gift is ordinarily revoked automatically.
– The donor may also revoke the gift at any time while alive.
– If the named beneficiary dies before the donor, the causa mortis gift generally fails; the property reverts to the donor’s estate (or is handled under other applicable succession rules).
Common practical problems and disputes
– Proof of intent and delivery: Without clear, contemporaneous evidence (written declaration, witnessed delivery, physical transfer), courts may find the gift invalid.
– Creditor and marital claims: Creditors, spouses, or others with legal claims against the donor’s estate may challenge whether or how much property was transferred by causa mortis.
– Overlap with wills: If a will disposes of the same property differently, disputes may arise over which instrument controls.
– Jurisdictional differences: State law varies on recognition, required elements, and remedies.
Practical steps — for donors (if considering a deathbed gift)
1. Prefer formal estate tools first
– Use a will, pour-over will, revocable living trust, beneficiary designations, or joint ownership where appropriate. These are clearer and less likely to be contested.
2. If you decide on a causa mortis gift, document the decision
– Prepare a short written statement signed and dated by the donor that clearly states the intent to gift the specified item because of imminent death and identifies the beneficiary and the property.
– Have the statement witnessed (if possible) or notarized.
3. Provide clear delivery
– Transfer physical possession when feasible or give access (keys, documents) that makes constructive delivery indisputable.
– Preserve evidence of delivery: photographs, witness statements, copies of handed documents.
4. Communicate acceptance
– The beneficiary should signify acceptance (a signed receipt or acknowledgement is helpful).
5. Notify other family members (optional)
– Consider notifying family or executors to reduce later disputes—though this may not always be possible.
6. Consult professionals
– Speak with an estate attorney and a tax advisor before making significant transfers.
Practical steps — for beneficiaries
1. Accept and document acceptance
– Sign an acknowledgement or receipt; retain any written statements or evidence from the donor.
2. Preserve evidence
– Keep any physical items, writings, witness names, and dates that demonstrate delivery and donor intent.
3. If the donor dies, seek legal advice promptly
– Present evidence to the executor or probate court; if contested, you may need counsel to enforce the gift.
4. Return the gift if the donor survives
– If the donor survives, the gift is not effective; returning the property demonstrates good faith and prevents disputes.
Alternatives to avoid problems
– Will or revocable living trust: Provide clear, formal instructions for your estate and beneficiaries.
– Beneficiary designations: For bank accounts, retirement accounts, and life insurance, use proper beneficiary designations that bypass probate.
– Joint ownership with rights of survivorship or transfer-on-death (TOD) registrations: These can effectuate post-death transfers more clearly than causa mortis gifts.
When to consult an attorney or tax advisor
– Whenever you or a loved one contemplates a gift in anticipation of death, has a complex estate, or there are potential creditor, tax, or spousal-interest issues.
– If a gift causa mortis is contested after the donor’s death — get an attorney experienced in probate and trust litigation.
Summary
A gift causa mortis is a conditional, usually revocable gift made in anticipation of imminent death that becomes irrevocable only if the donor dies from the anticipated peril. Because these gifts depend on contemporaneous intent and delivery, they are more legally precarious than wills, trusts, or properly documented inter vivos transfers. Use clear documentation, proper delivery, and professional advice to reduce disputes and unexpected tax or probate consequences.
Source
– “Gift Causa Mortis,” Investopedia. https://www.investopedia.com/terms/g/gift-causa-mortis.asp
(Information above summarizes general legal principles; laws vary by state and country. For specific legal or tax guidance, consult a licensed attorney or tax professional.)
(Continuation)
Legal elements of a gift causa mortis
– Intent: The donor must intend to make a present gift conditioned on imminent death. Mere expression of hope or a promise without intent is not enough.
– Expectation of imminent death: The donor must believe death is near and the gift must be made in contemplation of that impending death (for example, after a terminal diagnosis or following a mortal injury).
– Delivery: There must be delivery of the property (actual, constructive, or symbolic) to the donee or a reliable third party. Constructive delivery (e.g., handing over keys or access to a safety deposit box) is commonly accepted when actual delivery of the specific item is impracticable.
– Acceptance: The beneficiary must accept the gift. Acceptance is usually presumed if the gift confers an obvious benefit.
– Death: The gift becomes effective only if the donor subsequently dies of the anticipated cause. If the donor survives, the gift is automatically revoked.
Types of delivery
– Actual delivery: The donor physically hands the property to the donee (e.g., handing over a bracelet).
– Constructive delivery: The donor gives something that provides access or control over the property (e.g., keys to a safe, the combination to a safe-deposit box, or documents of title).
– Symbolic delivery: The donor transfers an item that represents the property (e.g., delivering a written note or token representing ownership) — accepted in some jurisdictions if accompanied by clear intent.
How a gift causa mortis differs from other transfers
– Versus inter vivos gift: Inter vivos gifts (gifts made during life) are ordinarily irrevocable once delivered and accepted; gifts causa mortis are revocable while the donor lives and are conditional on the donor’s death.
– Versus testamentary disposition (will): Gifts causa mortis, although not made through a will, act like testamentary transfers because they only take effect upon the donor’s death and generally are included in the estate for purposes of estate-tax treatment.
– Versus trusts and contracts: A gift causa mortis is unilateral and conditioned on death; trusts and contracts have different legal structures and formalities.
Tax and estate treatment (overview)
– Federal estate-tax treatment: Gifts causa mortis are generally treated similarly to testamentary bequests and can be included in the decedent’s gross estate for federal estate tax purposes. (See IRS guidance on estate and gift taxes for specifics.)
– Inter vivos gifts and “three-year” rule: Certain transfers made shortly before death may be subject to special rules under the Internal Revenue Code (for example, transfers that are essentially revocations or retained interests). Consult a tax professional for details about IRC Section 2035 and related rules.
– State rules and exemptions: State estate or inheritance taxes, and exemptions, vary; check local law.
Practical and legal limitations
– Usually limited to personal property: Many courts treat causa mortis gifts as most appropriate for personal property; transfer of real property is typically more complicated and may require formalities (deeds, recording) that defeat the typical deathbed-gift character.
– Must be provable: Because these gifts bypass formal testamentary procedures, courts often require clear proof (witnesses, contemporaneous notes, possession transfer) that the elements were met.
– Beneficiary must survive donor: If the intended donee dies before the donor, the gift generally fails and does not pass to the donee’s estate, unless the donor’s intent indicates otherwise.
– Revocation: The donor can revoke at any time while alive, or the gift is automatically revoked if the donor survives the peril that caused the gift to be made.
Practical steps — for a donor considering a gift causa mortis
1. Consider alternatives: A will or a properly drafted trust is usually a safer, clearer vehicle for post-death transfers. Use a will or trust to avoid ambiguity and probate fights.
2. If you still want a causa mortis gift:
– Communicate clearly to the donee that the gift is given in contemplation of imminent death.
– Use actual or constructive delivery where possible (demonstrably hand over the item or keys/documents that grant control).
– Create contemporaneous documentation (a short written statement or witnessed note) describing the gift, the donor’s intent, date, and circumstances.
– Have reliable witnesses present and consider having the donee sign an acknowledgement of receipt.
3. Consult legal counsel and tax advisor to understand state-law requirements and tax consequences.
Practical steps — for an intended recipient (donee)
1. Accept the gift clearly — written or witnessed acceptance reduces disputes.
2. Keep evidence: retain any token, keys, notes, witness statements, photographic proof of delivery, or contemporaneous communications showing the donor’s intent.
3. If the donor dies and you claim a causa mortis gift, provide the executor/administrator with proof. Expect scrutiny; courts require clear proof of the elements.
4. Consult an attorney promptly if an executor disputes your claim.
Practical steps — for executors and administrators
1. Investigate: If a claimant asserts a causa mortis gift, request documentation and witness statements showing intent, delivery, and acceptance.
2. Preserve estate assets: Temporarily hold disputed items until claim validity is resolved; consult counsel about whether to admit or contest a claimed gift.
3. Be aware of tax implications: Confirm with tax counsel how inclusion or exclusion of the property affects estate tax filings.
Examples and hypotheticals
– Example 1 — Classic deathbed gift: A woman on her deathbed gives her niece the only key to a jewelry box and says, “This is yours if I die.” The woman dies two days later. The niece keeps the box and has the key; a court is likely to treat this as a valid gift causa mortis if witnesses corroborate the circumstances.
– Example 2 — Donor survives: A man injured in a car accident hands his watch to his sister saying it’s hers if he dies. He recovers and survives. The gift is automatically revoked; the sister has no right to keep the watch unless the donor later re-gifts it.
– Example 3 — Beneficiary predeceases donor: A donor gives a friend an heirloom ring in contemplation of imminent death. The friend dies the next day; the donor also dies shortly after. Because the friend predeceased the donor, the gift failed and the ring remains part of the donor’s estate.
– Example 4 — Constructive delivery and a safety deposit box: A donor gives the intended donee the safety deposit box keys and a written statement identifying the contents as the donee’s if the donor dies. If the donor dies and the bank allows access, courts frequently treat constructive delivery as sufficient proof.
Jurisdictional differences and case law points
– Courts vary in what they require for symbolic delivery and how strictly they apply the “expectation of imminent death” standard. Some jurisdictions scrutinize closely to prevent fraud.
– Because state law governs property transfers and probate, outcome can turn on local statutes and precedents. Always check state-specific law and consult counsel.
Common disputes and how courts resolve them
– Competing claims between heirs and donee: Heirs may argue the transaction was a loan, a sham, or lacked delivery; donees must produce strong evidence.
– Conflicts with later wills: If a donor gives an item causa mortis and later executes a will leaving the same item to someone else, the prior causa mortis gift may prevail (if legally valid), because the gift transferred the property interest before the will took effect.
– Burden of proof: The person asserting the gift bears the burden to prove the elements.
When to prefer a will or trust instead
– For most property transfers on death, a validly executed will or revocable living trust offers more certainty, reduced dispute risk, clear tax planning, and better protection under probate rules. Use causa mortis gifts only in limited, urgent situations.
Checklist for documenting a gift causa mortis (practical)
– Written statement by the donor describing the gift, the donor’s expectation of imminent death, and the donee’s identity.
– Delivery evidence (item handed over, key, combination, or documents).
– Donee’s signed acceptance (if possible).
– At least one impartial witness and their signed statement.
– Photograph or contemporaneous note showing the item in the donee’s possession.
Conclusion / key takeaways
– A gift causa mortis is a conditional, revocable gift of personal property made when a donor reasonably expects imminent death; it becomes irrevocable only upon the donor’s death.
– Elements required typically include intent, expectation of death, delivery, acceptance, and the donor’s subsequent death.
– These gifts are often treated similarly to testamentary transfers for estate-tax purposes and are subject to close judicial scrutiny because they bypass normal testamentary formalities.
– For certainty and tax planning, estate instruments like wills and trusts are generally preferable; if a deathbed gift is used, document it carefully and consult legal and tax counsel.
– If you are a donor, a donee, or an executor dealing with a claimed causa mortis gift, seek local legal counsel because outcomes depend heavily on jurisdiction and the specific facts.
Sources
– Investopedia, “Gift Causa Mortis” — https://www.investopedia.com/terms/g/gift-causa-mortis.asp
– Internal Revenue Service, Estate and Gift Taxes overview — https://www.irs.gov/businesses/small-businesses-self-employed/estate-and-gift-taxes
If you want, I can draft a sample short contemporaneous declaration form you and a witness could use to document a causa mortis gift, or summarize relevant state-law differences for your state. [[END]]