Definition
A donatio causa mortis (Latin: "gift on account of death") is a conditional gift of personal property made by a donor who anticipates imminent death, delivered to the donee during the donor's lifetime, and taking effect absolutely only upon the donor's death from the anticipated cause. If the donor survives, or revokes the gift before death, the donee's title fails and the property returns to the donor or the donor's estate.
The gift occupies a middle ground between an outright inter vivos gift and a testamentary bequest. Like an inter vivos gift, it requires delivery during the donor's lifetime. Like a will, its effect is contingent on death. Unlike a will, it does not require compliance with Wills Act formalities — a feature that courts have scrutinized closely and sometimes restricted.
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Common Confusion
Donatio causa mortis is routinely confused with two neighboring concepts:
INTER VIVOS GIFT: An ordinary inter vivos gift is unconditional and irrevocable once made. A donatio causa mortis remains revocable and lapses automatically if the donor recovers. The delivery requirement is the same, but the legal consequences diverge entirely.
TESTAMENTARY BEQUEST: A bequest under a will transfers nothing until probate; a donatio causa mortis transfers a defeasible interest at delivery, ripening into absolute title on death. The practical danger for researchers is that courts and legislatures hostile to informal transfers have occasionally treated causa mortis gifts as testamentary in effect and required will formalities — a doctrinal tension that runs throughout equity and probate jurisprudence.
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Core Elements
Courts and treatises have consistently identified three requirements. All three must be satisfied:
1. CONTEMPLATION OF DEATH FROM A SPECIFIC CAUSE. The donor must be apprehending death from a present illness, peril, or condition — not merely abstract human mortality. A donor in good health who fears dying "someday" cannot make a valid donatio causa mortis. The anticipation must be of death from the identified cause; death from an unrelated cause may defeat the gift depending on jurisdiction.
2. ACTUAL DELIVERY. The subject matter must be delivered to the donee (or to a third party on the donee's behalf) at the time of the gift. Delivery is not a mere formality — it is what distinguishes the transaction from an unexecuted testamentary intent. Things incapable of manual delivery may require constructive or symbolic delivery (delivery of a key, passbook, or container), and courts have varied considerably in how liberally they construe this requirement.
3. CONDITION OF DEFEASANCE. The gift is impliedly conditioned on the donor's death from the contemplated cause. It is automatically revoked if the donor recovers, and it may be expressly revoked at any time before death. The gift also fails if the donee predeceases the donor.
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Why It Matters in Research
Donatio causa mortis is a term with a stable Latin name but a doctrinally contested history. Several research traps apply:
EQUITY VS. COMMON LAW SOURCES. The donatio causa mortis was recognized in equity before it was uniformly accepted at common law. Chancery cases and treatises in equity are often the primary doctrinal sources through the 19th century; common law reporters may underreport or mischaracterize the doctrine. Burrill cites Digest 39.6 and the Codex — this is Roman law lineage, filtered through equity, not a purely common law development.
SUBJECT MATTER LIMITATIONS. Rapalje & Lawrence note that things whose property does not pass by delivery — such as corporate stock — were historically excluded. This limitation is significant when reading 19th-century cases: negotiable instruments, savings bank books, and stock certificates each generated distinct lines of authority on whether and how they could be the subject of a causa mortis gift. Modern cases may treat these differently, especially where documentary delivery substitutes for manual delivery.
SURVIVAL AND REVOCATION RULES. The automatic-revocation-on-recovery rule appears consistently, but what counts as "recovery" and whether subsequent reinstatement of illness revives the gift are points on which historical sources are thin. Researchers should not assume uniformity across jurisdictions or time periods.
WILLS ACT PRESSURE. From the Statute of Frauds forward, English and American courts periodically tested whether causa mortis gifts circumvented testamentary formality requirements. Some American states by statute or case law have limited or regulated the doctrine. This is an area where corpus research must track legislative history alongside case law.
ROMAN LAW BASELINE. Burrill's citation to Digest 39.6 and the Novels signals that this doctrine has a 2,000-year pedigree. Researchers consulting 18th- and early 19th-century American sources will encounter explicit reliance on Roman law to fill gaps in common law doctrine — a methodology that disappears from mainstream American courts by the late 19th century but remains visible in equity-side decisions.
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Historical Dictionary Support
Burrill offers the most theoretically complete historical entry, framing donatio causa mortis as "a conditional gift, dependent on the contingency of expected death" and rooting it explicitly in Roman law sources (Digest 39.6; Code 8.57; Novel 87). His citation to Gibson C.J. in 2 Wharton's R. 17 illustrates how American courts in the early republic turned directly to civil law when common law authority was sparse.
Rapalje & Lawrence provide the most practically oriented historical summary, specifying the delivery requirement, the contingency structure, and the exclusion of stock and other non-deliverable property. Their entry reads as a doctrinal checklist consistent with how equity courts actually applied the rule.
Bouvier's entry in the supplied materials addresses only the literal translation of "causa patet" and supplies nothing substantive on donatio causa mortis itself — a notable gap for a dictionary of Bouvier's scope. Researchers relying on Bouvier for this term should consult the fuller edition entries under "Gift" and "Causa Mortis" rather than the cross-reference stub.
Blackstone's definition, quoted in Burrill ("a death-bed disposition of property, where a person in his last sickness, apprehending his dissolution near, delivers, or causes to be delivered"), remains the most widely cited common law formulation and appears in American treatises throughout the 19th century. It slightly overstates the "last sickness" requirement — later cases extended the doctrine to gifts made in anticipation of death from peril other than illness — but it captures the core paradigm that shaped early American doctrine.
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Jurisdictional Note
American jurisdictions generally follow the three-element framework (contemplation of death, delivery, defeasance on recovery), but differ on the liberality of constructive delivery, the treatment of non-traditional assets such as bank accounts and securities, and whether the doctrine survives intact or has been partially displaced by non-probate transfer statutes. English law substantially narrowed the doctrine over the 20th century. Researchers should treat any pre-1900 authority as potentially unreliable on modern asset classes.
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Encyclopedia Cross-Reference
Personal Property — Gifts (Inter Vivos, Causa Mortis — Delivery, Intent, Acceptance), The Law Mind Property Law Encyclopedia
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