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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE
- Acceptance of a donation must be made during the lifetime of the donor and of the donee.
- Donations which are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession.
- When the donor intends that the donation shall take effect during the lifetime of the donor, though the property shall not be delivered till after the donor’s death, this shall be a donation inter vivos.
Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another who accepts it.
The Civil Code states that:
Article 726. When a person gives to another a thing or right on account of the latter’s merits or of the services rendered by him to the donor, provided they do not constitute a demandable debt, or when the gift imposes upon the donee a burden which is less than the value of the thing given, there is also a donation. (Article 726, Civil Code)
The donation is perfected from the moment the donor knows of the acceptance by the donee. (Article 734, Civil Code of the Philippines)
Distinction as to the time of acceptance of the donation
Acceptance to the donation must be made at the lifetime of the donor and of the done. In case of donation inter vivos, acceptance takes effect during the lifetime of the donor and the donee.
The law says:
Article 746. Acceptance must be made during the lifetime of the donor and of the donee. (Article 746, Civil Code)
In case of donation mortis causa, acceptance is made only after the donor’s death because they partake of the nature of a will and thus governed by the rules on succession.
The law says:
Article 728. Donations which are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession. (Article 728, Civil Code)
Jurisprudence says:
The case of Ursulina Ganuelas, et. al. v. Hon. Robert Cawed, G.R. No. 123968, April 34, 2003 is instructive when Supreme Court held that:
Donation inter vivos differs from donation mortis causa in that in the former, the act is immediately operative even if the actual execution may be deferred until the death of the donor, while in the latter, nothing is conveyed to or acquired by the donee until the death of the donor-testator. (Ursulina Ganuelas, et. al. v. Hon. Robert Cawed, G.R. No. 123968, April 34, 2003)
Other distinctions
A donation inter vivos and a donation mortis causa may be further distinguished as to the following:
Intention
As to the intention of making the donation, a donation inter vivos is made out of the donor’s pure generosity, while a donation mortis causa is made in contemplation of his death without the intention to lose the thing or its free disposal in case of survival.
Time of conveyance
As to the time the title is conveyed, in donations inter vivos, title is conveyed to the donee before the donor’s death, while in donations mortis causa, title is conveyed to the donee upon the donor’s death.
Validity
As to the validity of the donation, a donation inter vivos remains valid if the donor survives the donee, while in a donation mortis causa, the donation is void if the donor survives the donee.
Revocability
As to its revocability, donations inter vivos are generally irrevocable during the lifetime of the donor except for the grounds provided under the law. Donations mortis causa are revocable at any time and for any reason before the death of the donor.
Question: What donation is made if the gratuitous act is done in contemplation of the donor’s death?
Answer: If the donation is made in contemplation of the donor’s death, meaning that the full or naked ownership of the donated properties will pass to the donee only because of the donor’s death, then it is at that time that the donation takes effect, and it is a donation mortis causa which should be embodied in a last will and testament.
But if the donation takes effect during the donor’s lifetime or independently of the donor’s death, meaning that the full or naked ownership (nuda proprietas) of the donated properties passes to the donee during the donor’s lifetime, not by reason of his death but because of the deed of donation, then the donation is inter vivos.
(Teodoro Alejandro, et. al. v. Hon. Ambrosio M. Geraldez, G.R. No. L-33849, August 18, 1997)
Related article: What is a gratuitous donation?
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