Short answer. The timing of effect. A donation inter vivos takes effect during the donor's lifetime and follows the rules on donations. Article 728 says a donation meant to take effect upon the donor's death is treated as a testamentary provision, governed by the rules on succession, so it must meet a will's formalities.
What the law says
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.
Civil Code, Article 728 — Donations Effective Upon Death. Read the full provision →
Two kinds of donation, told apart by when they take effect
Donations come in two fundamentally different types, and the dividing line is when the transfer is meant to become effective. A donation inter vivos is made to take effect during the lifetime of the donor: the donor presently disposes of the property, even if enjoyment is deferred, and parts with it while alive. A donation mortis causa, by contrast, is meant to operate only when the donor dies. This timing is not a technicality; it determines which set of rules governs the donation and what formalities it must satisfy to be valid.
A death-effective donation is treated as a will
Article 728 fixes the consequence of the mortis causa character. It provides that 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. In other words, a donation designed to take effect at death is treated, in substance, like a bequest in a will. It is not enough that it is called a donation; because it is meant to dispose of property upon death, the law subjects it to the rules that govern wills and succession.
Why the formalities of a will matter
The practical significance is sharp. Because a donation mortis causa is governed by the rules on succession, it must comply with the formalities the law requires for wills to be valid. A purported donation that is really mortis causa but was executed only with the formalities of an ordinary donation, and not those of a will, is void, since it fails to meet the standard for the category it actually belongs to. Correctly classifying the donation is therefore essential, because the wrong formalities can defeat the transfer entirely.
Telling them apart in practice
Whether a donation is inter vivos or mortis causa is determined by its true nature, not merely by the label the parties used. Courts look at whether the donor intended to part with the property presently, reserving perhaps only the enjoyment, which points to inter vivos, or intended to convey nothing until death, which points to mortis causa. Anyone making or receiving a donation should identify which it truly is, because an inter vivos donation follows the rules on donations, while a mortis causa donation must be executed with the formalities of a will to take effect at all.
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.
- Rhodora Ilumin Racho a.k.a. "Rhodora Racho Tanaka" vs. Seiichi Tanaka, Local Civil Registrar of Las Piñas City and the Administrator and Civil Registrar General of The National Statistics Office, G.R. No. 199515, June 25, 2018 — read the decision on LawPhil →
- Maria Teresa Dino Basa-Egami vs. Dr. Lisa Grace Bersales, in her capacity as the, G.R. No. 249410, July 6, 2022 — read the decision on LawPhil →
- Ursulina Ganuelas, et al. vs. Hon. Robert T. Cawed, et al, G.R. No. 123968, April 24, 2003 — read the decision on LawPhil →
- Ma. Estela Maglasang, et al. vs. The Heirs of Corazon Cabatingan, et al, G.R. No. 131953, June 5, 2002 — read the decision on LawPhil →