Also known as: gratuitous transfer · gratuitous transferred · transfers without consideration · gift transfers
Written by attorneys · grounded in primary & secondary sources — see below
An interest in property conveyed without consideration or bargained-for exchange. Protection of the transferor's expectations receives particular weight in choice-of-law analysis because such transfers typically involve forethought and consultation with counsel.
Genevieve Gardner executed a deed conveying riverfront land in State B to Gloria Green without receiving any payment. Years later Green sought to expand use of the parcel beyond the stated purpose. A court in State A applied the law of State B to determine the scope of the interest because the gratuitous character of the conveyance gave particular significance to the donor's original expectations formed under the law of the situs.
Glenn Gross lay ill in a hospital and wrote notes directing that certain personal items be given to Greta Goldstein upon his death. The items remained in his hospital room and were never physically handed over. After Gross died his estate contested the transfer. The court held that the absence of direct physical delivery defeated the claimed gratuitous transfer despite the conceded honesty of the intended donee's claim.
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Protection of the transferor's expectations assumes particular significance in gratuitous transfers such as those by will or inter vivos trust. Parties to transfers for consideration have equal expectations, but the donor's intent controls when no consideration passes.
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No. A deed in lieu requires consideration in the form of the lender's agreement to treat the debt as satisfied. Without that bargained-for exchange the conveyance would lack the mutual assent needed to discharge the mortgage obligation.
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An advance is treated as a loan unless clear evidence shows donative intent to make a gift. Absent such intent the partnership must reimburse the partner with interest regardless of later disagreement among the partners.
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For interests in immovables the law of the situs ordinarily governs even when the transfer is gratuitous. The donor's expectations formed under the law of another state receive weight but do not displace the situs interest in stable land titles.
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