I want to give my house now but keep it until I die — is that a donation or a will?

The deciding factor is when the gift takes effect

The label does not turn on when you physically hand over the house. It turns on when you intend the gift itself to become effective. Article 729 makes this explicit: 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. So you can keep living in and holding the house until you die and still have made a present donation — provided your real intent is that the gift is operative now, and only the delivery of possession is postponed. Delayed delivery does not, by itself, turn a donation into a will.

Why the distinction matters so much

The stakes are high because the two are formed differently. A donation inter vivos is made following the rules on donations. A disposition meant to take effect only at your death — a donation mortis causa — is treated like a testamentary gift and must follow the formalities of a will. Get the classification wrong and the transfer can fail entirely: a gift that is really mortis causa but was executed only as a donation, without the formalities of a will, may not stand. That is why Article 729 focuses the inquiry on your intent about effectivity, because everything about validity flows from it.

The fruits usually follow the donee

Because a valid inter vivos donation takes effect during your lifetime, the benefits of the property begin shifting even before delivery. Article 729 provides that the fruits of the property from the time of the acceptance of the donation, shall pertain to the donee, unless the donor provides otherwise. In plain terms, once the donee accepts, income like rent normally belongs to the donee from that point, though you may stipulate a different arrangement. This is another marker that the gift is genuinely present rather than deferred to death: the donee starts drawing benefit now, not only after you are gone.

Reserving too much can flip the character

Caution is warranted, because if what you reserve is not merely possession but the substance of ownership — for instance, keeping the power to revoke or dispose of the property freely, so that nothing really passes until death — the arrangement can be treated as mortis causa despite being called a donation. The test looks at whether you truly parted with ownership now. Writing 'I keep it until I die' is compatible with an inter vivos gift only if the ownership actually transfers and just the enjoyment is retained. If in substance the gift is meant to operate at death, the formalities of a will are what govern.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

• Ursulina Ganuelas, et al. vs. Hon. Robert T. Cawed, et al, G.R. No. 123968, April 24, 2003 — read the decision on LawPhil →
• Ernesto Sicad, et al. vs. Court of Appeals, et al, G.R. No. 125888, August 13, 1998 — read the decision on LawPhil →

Related provisions

• Civil Code, Article 729 — Donation Inter Vivos Despite Delayed Delivery