Key Takeaways:

  • Donatio Mortis Causa Defined: A conditional gift made in anticipation of death, often described as a "deathbed gift," which only takes effect if the donor dies as expected.
  • Legal Requirements: For the gift to be valid, it must involve personal property, be made in the face of imminent death, and typically require physical delivery of the item to the donee or an intermediary.
  • Civil Law vs. Common Law: Civil law treats donatio mortis causa as a revocable gift that becomes irrevocable only upon death, while in common law, this gift shares characteristics with both inter vivos (during life) and testamentary (after death) gifts.
  • Revocability and Validity: Donatio mortis causa can be revoked if the donor survives or wishes to reclaim the item, and it may be subject to claims from creditors if the donor's estate has insufficient assets.
  • Finding Legal Support: Consultation with an attorney is often recommended to ensure compliance with specific legal requirements and to address any potential challenges to such gifts.

DONATIO MORTIS CAUSA

A gift in prospect of death. When a person in sickness, apprehending his dissolution near, delivers, or causes to be delivered to another, the possession of any personal goods to keep as his own, in case of the donor's decease.

Legal Significance of Donatio Mortis Causa

Donatio mortis causa, commonly referred to as a "deathbed gift," carries significant legal implications. Unlike gifts given inter vivos (during life), this type of gift is contingent upon the death of the donor. If the donor survives, the gift may be revoked. This provision helps maintain control over the asset during the donor's life while enabling a straightforward transfer upon death. Under civil law, donatio mortis causa is considered a unique blend of a lifetime gift and a testamentary disposition, meaning it does not typically undergo probate administration but may still be subject to the donor's debts if the estate lacks sufficient funds.

Donatio Mortis Causa in Civil Law

The civil law defines it to be a gift under apprehension of death; e.g., when any thing is given upon condition that if the donor dies, the donee shall possess it absolutely, or return it if the donor should survive or should repent of having made the gift, or if the donee should die before the donor.

Donations mortis causa are now reduced, as far as possible, to the similitude of legacies.

With respect to the nature of a donatio mortis causa, this kind of gift resembles a legacy in that it is ambulatory and incomplete during the donor's life; therefore, it is revocable by him and subject to his debts upon a deficiency of assets. But it differs from a legacy in that it does not fall within an administration, nor require any act in the executors to perfect a title in the donee.

Comparison with Testamentary Gifts

Although similar to a will in that it becomes effective upon the donor's death, donatio mortis causa differs because it does not require formal probate processes. It functions independently of the traditional inheritance route, often granting the donee immediate possession if the donor's death occurs as anticipated. However, the gift remains revocable and conditional, aligning it closely with legacy transfers while exempting it from formal will requirements. This characteristic has led to legal debates about the classification of donatio mortis causa as a testamentary act versus a conditional lifetime gift.

Good Faith Donatio Mortis Causa

The following circumstances are required to constitute a good donatio mortis causa:

  1. That the thing given be personal property; a bond, bank notes, and a check offered for payment during the life of the donor, will be so considered.
  2. That the gift be made by the donor in peril of death, and to take effect only in case the giver die.
  3. That there be an actual delivery of the subject to or for the donee, in cases where such delivery can be made. But such delivery can be made to a third person for the use of the donee.

It is an unsettled question whether such kind of gift appearing in writing, without delivery of the subject, can be supported. By the Roman and civil law, a gift mortis causa might be made in writing.

Essential Conditions for Validity

To ensure the validity of a donatio mortis causa, specific conditions must be satisfied:

  1. Intention in Anticipation of Death: The donor must make the gift expecting imminent death from a specific cause, which can include severe illness or a risky journey.
  2. Conditional on Death: The gift must only take effect if the donor dies from the anticipated cause. Survival allows the donor to reclaim the item.
  3. Delivery to the Donee: Physical delivery of the item to the donee or an authorized third party is generally required. This delivery cements the donee's right to the property if the donor does not survive.
  4. Good Faith and Personal Property: Donatio mortis causa must involve personal property, such as bonds or checks. Real estate or other immovable assets are typically excluded.

In some jurisdictions, a written declaration might suffice in place of delivery, but this remains an area of legal debate, particularly in common law systems.

Revocability and Legal Challenges

Donatio mortis causa is inherently revocable during the donor's lifetime. This revocability means that if the donor changes their mind or survives the anticipated peril, they can retrieve the item. Legal challenges can arise if third parties claim the item should be part of the donor’s estate, especially in cases where the estate has debts that cannot be covered by other assets. As such, careful documentation and legal oversight are recommended to mitigate disputes over the donor’s intent and the conditions under which the gift was given​.

How Donatio Mortis Causa Impacts Estate Planning

Donatio mortis causa can be a strategic tool in estate planning, offering a way to transfer specific assets directly to loved ones without formal probate processes. However, because it bypasses standard inheritance channels, challenges to the gift may arise if heirs question its validity. Given these factors, consulting with an estate attorney can help structure such gifts in compliance with local laws and ensure that they align with the donor's broader estate intentions. UpCounsel can connect clients with qualified estate planning attorneys who can provide guidance on creating and documenting donatio mortis causa agreements​.