Gift (law)

Inter vivos gifts

An inter vivos gift is an ordinary gift of personal property from one living person to another. It can be a gift of a present or future interest in a property. The three elements of an inter vivos gift are donative intent, delivery, and acceptance. The rules governing these elements were historically rigid but in recent years courts have become more lenient in their application by ignoring or circumventing the formal delivery requirement and elevating the importance of donative intent. Acceptance of a valuable gift is typically presumed by courts and thus is rarely a legal issue.

Donative intent

The donor of the gift must have a present intent to make a gift of the property to the donee. A promise to make a gift in the future is unenforceable, and legally meaningless, even if the promise is accompanied by a present transfer of the physical property in question.

Suppose, for example, that a man gives a woman a ring and tells her that it is for her next birthday and to hold on to it until then. The man has not made a gift, and could legally demand the ring back at any time before the woman's birthday because an immediate transfer has not occurred. In contrast, suppose a man gives a woman a deed and tells her it will be in her best interest if the deed stays in his safe-deposit box. The man has made a gift and would be unable to legally reclaim it because he has given her a present interest in the deed. There is a special exception for engagement rings which most states recognize: the transfer of an engagement ring is subject "to an implied condition that the marriage occur", thus if the engagement ends without a marriage, the giver of the engagement ring is entitled to revoke the gift.

Delivery

The gift must be delivered to the donee. If the gift is of a type that cannot be delivered in the conventional sense – a house, or a bank account – the delivery can be effected by a constructive delivery, wherein a tangible item allowing access to the gift – a deed or key to the house, a passbook for the bank account – is delivered instead. Symbolic delivery is also sometimes permissible where manual delivery is impractical, such as the delivery of a key that does not open anything, but is intended to symbolize the transfer of ownership.

Certain forms of property must be transferred following particular formalities described by statute law. In England, real property must be transferred by a written deed. The transfer of equitable interests must be performed in writing by the owner or their agent.

A gift is assumed when property owner deeds real estate as joint tenants with rights of survivorship. Regardless of contribution to purchase price, such a deed guarantees each tenant equal shares upon sale or partition of the property.

Acceptance

The donee must accept the gift in order for the property transfer to take place. However, because people generally accept gifts, acceptance will be presumed, so long as the donee does not expressly reject the gift. A rejection of the gift destroys the gift, so that a donee cannot revive a once-rejected gift by later accepting it. In order for such an acceptance to be effective, the donor would have to extend the offer of the gift again.