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Tips for Executing a Will; Causa Mortis Gift Requirements

Estate Planning

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Legal Chat: Deathbed gifts

If a friend gives me her jewelry on her deathbed, does that count as a valid gift that I can keep?

A gift given when someone confronts his own mortality is referred to as being made “causa mortis,” a Latin term that means “because of death.” While it is advisable to execute a will sooner rather than later and to make such asset distribution decisions long before the threat of death arises, even people who take such steps sometimes find themselves making causa mortis gifts.

For a causa mortis gift to be legally binding, it must satisfy the same requirements for gifts made when the donor is alive, referred to as inter vivos gifts. Further, “the gift must have been made in contemplation of the donor’s impending death and the donor must have died from the existing ailment or peril without revocation of the gift,” the Broome County Surrogate’s Court said in Matter of the Estate of Annie M. Curry (1989). A valid inter vivos gift involves an intent to donate, or “donative intent,” delivery of the gift, and its acceptance by the donor, the court added.

In Curry, for example, the court found that the car a donor gave to her brother after she learned she was terminally ill was a valid causa mortis gift. The court noted that there was clear donative intent, which was evidenced by the donor’s impending death and the fact that she signed the back of the car’s certificate of title. The court said that “the signing and delivery of the title certificate is symbolic delivery of the ownership of the automobile.” And while acceptance of a gift can be presumed when it is of value to the recipient, the court found there was further evidence of acceptance in the fact the brother’s decision to sell the car for his own benefit after the donor died. The court also found that “the motivating factor which prompted the gift on the part of the decedent was her knowledge that she was terminally ill.”

If the donor of a causa mortis gift does not die, he or she can reclaim the gift. While inter vivos gifts are irrevocable, meaning they cannot be reclaimed, causa mortis gifts become “void by recovery from the disease or escape from the peril,” the Queens County Surrogate’s Court said in Estate of Frieda Levine (2007). Even if there is no recovery, such gifts are “revocable at any time by the donor.”

By consulting with an experienced estate planning attorney and executing a will, you can have peace of mind from knowing your estate will be distributed in accordance to a well thought out plan that takes tax implications and other factors into account. If made within three years of death, a causa mortis gift is includible in a decedent’s gross estate. Consequently, the gift cannot be used to avoid estate taxes. Testators also need to know that if they do make any causa mortis gifts, they could disturb distribution amounts made from the residuary of the estate. Consult with an experienced estate planning attorney to explore your options for drafting a will or making gifts.

Greg T. Rinckey, Esq., is a founding partner at Tully Rinckey PLLC, a full-service law firm located in Colonie. For more information about the firm’s estate planning, personal injury, employment law, real estate, family and matrimonial law, or bankruptcy practices, please visit www.1888Law4Life.com. If you would like your legal question or topic answered in the next issue, please contact Greg Rinckey at 218-7100 or askthelawyer@1888law 4life.com. The information in this column is not intended as legal advice.

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