Short answer. It is a donation inter vivos. Article 731 of the Civil Code provides that when a person donates something subject to the resolutory condition of the donor's survival, there is a donation inter vivos. The fact that it may be undone if the donor outlives the donee does not make it a testamentary gift.
What the law says
When a person donates something, subject to the resolutory condition of the donor's survival, there is a donation inter vivos.
Civil Code, Article 731 — Donation Subject To Donor's Survival. Read the full provision →
The rule Article 731 establishes
Article 731 addresses a scenario that can confuse people: a donation that will be undone if the donor outlives the donee. Because the donation becomes permanent only if the donee dies first, it can look like a testamentary arrangement. The Civil Code clarifies that it is not. When the donation is subject to the resolutory condition of the donor's survival, there is a donation inter vivos. The gift takes effect immediately upon acceptance; the condition that might revoke it does not prevent the transfer from being present and real.
Resolutory condition explained
A resolutory condition is one that, if it occurs, extinguishes an obligation or right that already exists. Compare this to a suspensive condition, which prevents an obligation from arising until the condition is met. In a donation under Article 731, the property transfers to the donee now. If the specified event happens — the donor surviving the donee — the donation is undone and the property returns to the donor. The key point is that the donee's rights vest at the moment of the donation, not at a future point. That is what makes it inter vivos.
Why this distinction matters
Donations inter vivos and donations mortis causa are governed by very different rules. Donations inter vivos must follow the form requirements for donations — written form for most donations, with a public instrument and acceptance required when real property is involved. Donations mortis causa are essentially legacies, governed by the formalities of wills: they must be executed like a will, witnessed, and probated after the donor dies. A donation structured the way Article 731 describes must comply with the form rules for inter vivos donations, not the rules for wills. Getting this classification wrong can render an otherwise intended transfer void for failure to comply with the correct formalities.
What makes a donation mortis causa instead
A donation mortis causa conveys nothing during the donor's lifetime — the donee's rights spring into existence only at death. If the donor retains full dominion over the property until that point, has the power to revoke freely and at will, and intends the donation to operate as part of the dispositions on death rather than as an immediate transfer, the donation is mortis causa and must comply with the law on wills. The distinction from Article 731 is that in a mortis causa donation the donor retains dominion and the donee gets nothing presently, while in an inter vivos donation the donee's right is real and present, even if it could be extinguished by a resolutory condition.