Definition
A gift made between living persons. Donatio inter vivos is the Latin civil law designation for the ordinary, outright transfer of property from one person (the donor) to another (the donee) during both parties' lifetimes, without expectation of payment or return. The gift is complete — and irrevocable — at the moment of valid delivery and acceptance. Once made, it cannot be recalled by the donor simply because of a change of mind.
The Louisiana Civil Code, drawing directly from civilian tradition, captures the essential character: a donation inter vivos is an act by which the donor divests himself presently and irrevocably of the thing given, in favor of the donee who accepts it. That formulation — present divestment, irrevocability, acceptance — remains the operative framework across both civil and common law treatments of the concept.
The term contrasts principally with donatio mortis causa (a gift made in contemplation of death, which is revocable and contingent on the donor's death). It also contrasts with testamentary dispositions, which take effect only upon death and must comply with the formalities of a valid will.
---
Common Language
Modern common usage (Wiktionary): A lifetime gift; a present or future gift given during the donor's lifetime.
Historical common usage (Webster's 1913): Webster's 1913 does not contain a separate entry for this phrase, treating it as a Latin legal term rather than ordinary English vocabulary.
The common usage captured by Wiktionary is accurate as far as it goes, but it understates the legal significance of irrevocability. In ordinary speech, a "gift" implies something freely given and potentially freely retracted. In law, a completed donatio inter vivos strips the donor of all title and control at the moment of delivery — it is not a revocable promise but a concluded transfer. The distinction matters enormously when donors later claim they intended only a conditional or future gift.
---
Common Confusion
DONATIO INTER VIVOS vs. DONATIO MORTIS CAUSA: These two forms of donation are routinely conflated, particularly in older sources that use "gift" without qualification. The critical differences are: (1) a donatio inter vivos is effective immediately and irrevocably upon delivery and acceptance; a donatio mortis causa is conditional on the donor dying of the anticipated peril and is revocable up to the moment of death. (2) A donatio mortis causa fails if the donor recovers; a donatio inter vivos does not. Researchers encountering disputes about deathbed transfers must identify which category the court or source is analyzing — the legal consequences diverge sharply.
DONATIO INTER VIVOS vs. INTER VIVOS TRUST: An inter vivos trust is a trust created during the settlor's lifetime, but it is not necessarily a gift. A revocable inter vivos trust, in particular, does not constitute a completed donatio inter vivos because the settlor retains the power to revoke — the present, irrevocable divestment required for a true gift is absent until the trust becomes irrevocable.
---
Core Elements
For a donatio inter vivos to be legally complete, three elements must concur:
1. DONATIVE INTENT: The donor must intend to make a present, unconditional gift — not a loan, a deposit, or a future promise to give.
2. DELIVERY: The subject matter must be delivered to the donee (or a third party on the donee's behalf) in a manner appropriate to the nature of the property. Constructive and symbolic delivery are recognized where physical delivery is impractical.
3. ACCEPTANCE: The donee must accept the gift. Acceptance is generally presumed when the gift is beneficial, but it must be real — a donee cannot be forced to receive a gift they reject.
All three elements must be present simultaneously. A gift that satisfies two of three is not a completed donatio inter vivos and remains revocable.
---
Why It Matters in Research
HISTORICAL SOURCES USE LATIN WITHOUT EXPLANATION: In treatises from the eighteenth and nineteenth centuries — including Kent's Commentaries and Stephen's Commentaries, both cited in the dictionary sources — the phrase appears without translation or definition, on the assumption that readers command basic Latin legal vocabulary. Researchers unfamiliar with the phrase may underread passages that turn entirely on the distinction between inter vivos and mortis causa gifts.
CIVILIAN ORIGIN SHAPES AMERICAN TREATMENT UNEVENLY: Because the term derives from Roman and civil law (Justinian's Institutes, Book 2, Title 7), its doctrinal elaboration is most developed in Louisiana, which retained civilian property law. In common law jurisdictions, courts analyze the same transaction using English property vocabulary — "gift," "delivery," "title" — without invoking the Latin formula. A researcher comparing Louisiana cases to those from other states must account for this terminological divergence even when the underlying legal question is identical.
IRREVOCABILITY IS THE RESEARCH FAULT LINE: The bulk of litigation involving donatio inter vivos turns on whether a gift was in fact completed — whether delivery was sufficient, whether intent was present, or whether the transaction was dressed as a gift but was actually a testamentary transfer designed to avoid probate. When researching gift disputes in historical sources, look for analysis of delivery and intent, which are the doctrinal levers courts actually pull.
CONNECTION TO INTER VIVOS TRUSTS: Modern estate planning frequently uses revocable inter vivos trusts as will substitutes precisely because they are not completed donations — the retained power of revocation keeps the assets in the settlor's estate while achieving probate avoidance. Understanding that a true donatio inter vivos requires irrevocability explains why the revocable trust does not qualify, and why its estate tax and creditor-protection treatment differs from an outright gift.
---
Historical Dictionary Support
Black's Law Dictionary and Burrill's Law Dictionary are in complete agreement on this term, and both trace it to the same two common law sources — Kent's Commentaries (2 Kent, Comm. 438) and Stephen's Commentaries (2 Steph. Comm. 102) — along with the civilian root in Justinian's Institutes. Neither dictionary disagrees on substance; the entries are essentially parallel, with Black's adding the Louisiana Civil Code formulation, which is the most precise statutory rendering of the civil law concept.
The historical dictionaries define the term correctly but minimally. Neither entry addresses the delivery requirement in any depth, and neither distinguishes the completed gift from the revocable inter vivos trust — a distinction that, while largely a twentieth-century concern, has roots in earlier equity doctrine. Researchers relying solely on these entries will have an accurate but incomplete picture.
The Louisiana Civil Code language reproduced in Black's — "divests himself at present and irrevocably of the thing given in favor of the donee who accepts it" — is quoted because it is genuinely more precise than any paraphrase. It is the most useful formulation for research purposes across both civilian and common law contexts.
---
Jurisdictional Note
Louisiana treats donatio inter vivos as a term of art within its civil law framework, and its Civil Code contains explicit formal requirements for certain donations (including notarial form for immovables) that have no direct counterpart in common law states. In common law jurisdictions, the same transaction is governed by judge-made gift law emphasizing delivery, intent, and acceptance, without the formal statutory framework. Researchers moving between Louisiana materials and common law sources should expect terminological and structural differences even when analyzing functionally identical transactions.
---
Encyclopedia Cross-Reference
Property Law Encyclopedia: Personal Property — Gifts (Inter Vivos, Causa Mortis — Delivery, Intent, Acceptance)
Trusts, Estates & Probate Encyclopedia: Revocable Inter Vivos Trusts as Will Substitutes
---