Definition
Inter vivos (Latin: "between the living") describes a legal transaction or transfer made between living persons during their lifetimes, as distinguished from a transfer that takes effect at or because of death. The term functions as both an adjective and a shorthand classification across several bodies of law.
Two primary uses appear in modern practice:
1. Inter vivos gift: A gift made by a living donor to a living recipient, completed and effective immediately — not dependent on the donor's death. To be valid, an inter vivos gift requires donative intent, delivery, and acceptance. Because it is irrevocable once complete, it is treated differently from a gift causa mortis (made in anticipation of death) and from a testamentary bequest.
2. Inter vivos trust: A trust created and operative during the settlor's lifetime, as opposed to a testamentary trust, which is created by will and takes effect only at death. Inter vivos trusts may be revocable or irrevocable. The revocable inter vivos trust — often called a living trust — has become a primary will substitute in estate planning.
Common Confusion
Inter vivos is most often confused with its counterpart, causa mortis. A gift causa mortis is made by a donor who anticipates imminent death; it is conditional, revocable while the donor lives, and lapses if the donor recovers or the recipient predeceases the donor. An inter vivos gift, once completed, is unconditional and irrevocable. Researchers should not assume that every gift from a living person is an inter vivos gift — the donor's circumstances and intent at the time of transfer determine the classification.
Inter vivos trust is also sometimes conflated with testamentary trust. The distinguishing factor is when the trust becomes operative: inter vivos trusts are active during the settlor's life; testamentary trusts spring into existence only upon probate of a will.
Why It Matters in Research
The term itself is stable — its Latin meaning has not shifted — but its legal significance has evolved considerably across time and across doctrinal areas.
In gift law, the inter vivos / causa mortis distinction controls revocability, the delivery requirement, and the donee's ability to retain the property if the donor survives. Historical sources treat this distinction carefully because gift law was one of the first areas where civil law concepts were absorbed into English common law. Burrill's reference to Bracton and the Institutes signals how early this absorption occurred; researchers working in early common law sources should expect inter vivos terminology to carry civilian overtones.
In trust and estate planning law, the significance of inter vivos has grown dramatically in the modern period. The revocable inter vivos trust emerged as a dominant estate planning instrument largely in the twentieth century, driven by probate avoidance, asset management, and privacy. Historical dictionary sources — including both editions of Black's — address inter vivos primarily in the gift context. Researchers who encounter inter vivos in sources predating the mid-twentieth century should not assume the term refers to trust instruments; it likely refers to gifts or conveyances. Modern sources, by contrast, often lead with the trust context.
For property law researchers, the inter vivos transfer is the baseline against which testamentary transfer and causa mortis transfer are measured. Formality requirements differ substantially: inter vivos gifts of real property require a deed; testamentary transfers require a valid will; causa mortis gifts occupy contested middle ground. Tracing a disputed transfer across these categories in historical materials requires attention to the language used by the original sources, which do not always apply these labels consistently.
Jurisdictional variation in the treatment of revocable inter vivos trusts — particularly their interaction with spousal elective share rights and creditors' claims — is an active research area where older encyclopedia sources may be outdated.
Historical Dictionary Support
The four historical sources agree on the core definition and on the primary illustration: inter vivos gifts are contrasted with gifts causa mortis. Rapalje & Lawrence and Burrill's are the most precise on this point, both noting that ordinary gifts (donationes) bear the inter vivos label to separate them from deathbed or anticipatory gifts. Burrill's adds the civil law pedigree explicitly, citing the Institutes and Bracton, which is useful for researchers tracing the term into pre-modern English authorities.
Both editions of Black's extend the concept to conveyances generally — "where property passes by conveyance" from one living person to another — framing inter vivos as a transactional category broader than gifts alone. This framing is the more useful one for modern research, where inter vivos modifies trusts, transfers, and transactions as well as gifts.
None of the historical sources address the inter vivos trust with any depth, which reflects both the era of composition and the relative underdevelopment of trust-as-will-substitute doctrine at those times. Researchers should treat all four sources as incomplete guides to inter vivos in the trust context and consult modern treatises for that application.
Jurisdictional Note
The basic inter vivos / testamentary / causa mortis framework is uniform across common law jurisdictions. Meaningful variation arises in the treatment of revocable inter vivos trusts: some states subject them to elective share claims and creditor reach as though they were probate assets; others treat them as beyond the probate estate. Researchers analyzing a specific jurisdiction's estate planning law should not assume that the general framework resolves these questions.
Encyclopedia Cross-Reference
Revocable Inter Vivos Trusts as Will Substitutes — Trusts, Estates & Probate Encyclopedia
Personal Property — Gifts (Inter Vivos, Causa Mortis — Delivery, Intent, Acceptance) — Property Law Encyclopedia