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‘Twas The Season: A Gift Or Not A Gift

By Brandon D. Bellew & Caitlein J. Jammo | Categories: Articles, Business & Tax Law, Litigation, Trusts & Estates | Share May 2018

As the season of giving has passed, we are reminded that all seasons must come to an end. The other, less generous seasons usually include litigation related to interests in property that are claimed to have been acquired by gift. This includes the donor who may have been in the spirit of giving at the time but has second thoughts later on. The donor who later wants to rescind a valid gift cannot simply disavow the gift by unsubstantiated, self-serving testimony that no gift was intended despite the existence of the other gift elements. See Hay v. Hay, 944 So. 2d 1043 (Fla. 4th DCA 2006). This is especially true when the donor’s conduct treats the property as if it were gifted—for instance, the donor says that the property is “ours” or gave full dominion and control of the property to the donee.

An unconditional gift made during the donor’s lifetime is called an inter vivos gift, and it is irrevocable if all elements are present. The essential elements of an inter vivos gift are: (1) present donative intent (the donor’s clear intent to pass title/interest to the property to the recipient); (2) delivery (a surrender of all or some dominion and control by the donor and allowing the donee to have possession, which may take different forms depending on the property type), and (3) acceptance by the donee. Sullivan v. American Telephone and Telegraph Company, 230 So. 2d 18 (Fla. 4th DCA 1969).

The donor must have the present intention to make a gift. The intention to vest ownership in the donee in the future or upon the donor’s death will not establish a valid gift. There must be an “intent then and there to pass title.” Williams v. Williams, 255 So. 2d 273 (Fla. 4th DCA 1971). The donor must make an irrevocable surrender of control of the property, giving the donee an unrestricted right to use the property. Kuebler v. Kuebler, 131 So. 2d 211 (Fla. 2d DCA 1961). However, if the property interest gifted is an interest in a joint financial account, the delivery may be constructive—i.e. the donor does not give up control but confers the right for the donee to equally access the account. Panzirer v. Deco Purchasing & Distrib. Co., 448 So. 2d 1197 (Fla. 5th DCA1984). Finally, a gift must be accepted by the recipient for it to be a valid gift, but there is generally a rebuttable presumption of acceptance. Naylor v. U.S. Trust Co. of Fla., 711 So. 2d 1350 (Fla. 2d DCA 1998).

The recipient of the gift must prove all necessary facts to establish the validity of the gift. Ritter v. Shamas, 452 So. 2d 1057 (Fla. 3d DCA 1984). However, certain transactions can create a presumption that a gift was made. Once the presumption of a gift arises, the party claiming that there was no gift has the burden of presenting evidence that one of the gift elements did not exist. See Robertson v. Robertson,593 So. 2d 491 (Fla. 1992). Some of these transactions are:

  • creating a joint bank account between two with the funds of one, Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008);
  • one party paying the full purchase price but taking title jointly with another person who did not contribute to the purchase price, O’Donnell v. Marks, 823 So. 2d 197 (Fla. 4th DCA 2002);
  • a joint account holder contributing his/her own funds to a joint bank account, In re Guardianship of Cosio, 753 So. 2d 134 (Fla. 2d DCA 2000); and
  • a person paying the purchase price for property and causing title to vest in the name of a spouse, child, or natural object of their bounty, Medary v. Dalman, 69 So. 2d 888 (Fla. 1954).

However, a gift can be presumptively invalid if the donee has a confidential or fiduciary relationship with the donor, and the burden is on the donee to produce evidence that the gift is fair and valid. Crane v. Stulz, 136 So. 2d 238 (Fla. 2d DCA 1961).  These gift presumptions may be rebutted by facts that prove that no gift was intended at the time of transfer, that the donor continued to maintain exclusive control over the property, or that the titling giving rise to the gift presumption was only done as a convenience to the donor. Mulato v. Mulato, 705 So. 2d 57 (Fla. 4th DCA 1997).

Finally, the validity of a gift can be contested as being the product of undue influence. There is a presumption that the gift resulted from undue influence if there is a confidential relationship between the donee and donor and the donee actively procured the gift. Cripe v. Atl. First Nat. Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982)

‘Twas the season for giving—but only if all the elements of a valid gift are present.


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