Definition
A gift made in contemplation of death. The donor, believing death to be imminent — typically due to illness or a specific apprehended peril — delivers personal property to a recipient with the intention that the recipient shall keep it if the donor dies. If the donor recovers, the gift is revoked by operation of law. If the donor dies of the anticipated cause, the gift becomes absolute.
The phrase is Latin for "gift on account of death." It occupies an uneasy middle ground between an inter vivos gift and a testamentary disposition: it is made during life but takes final effect, if at all, at death.
Three conditions must coexist for a valid donatio mortis causa: (1) the gift must be made in contemplation of the donor's imminent death from a specific apprehended cause; (2) delivery of the property — actual or constructive — must occur; and (3) the gift must be conditional, automatically revoked if the donor survives the apprehended peril or revokes it before death.
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Common Language
Wiktionary: "A deathbed gift: a future gift given in expectation of the donor's imminent death and only delivered upon the donor's death."
Editorial note: The popular understanding captures the emotional circumstances but misses the legal mechanics. A donatio mortis causa does not require that delivery occur at death — delivery must occur before death, during the donor's lifetime. The conditionality runs the other direction: the gift is made now and undone only if the donor survives, not made now and completed later. Researchers who read historical sources through the common-language lens may misread the delivery requirement, which is often the dispositive issue in litigation.
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Common Confusion
DONATIO MORTIS CAUSA vs. INTER VIVOS GIFT: Both require delivery and donative intent during the donor's lifetime. The difference is conditionality and revocability. An inter vivos gift is immediate, absolute, and irrevocable upon delivery. A donatio mortis causa is conditional on the donor's death and automatically revoked by survival.
DONATIO MORTIS CAUSA vs. TESTAMENTARY BEQUEST: A bequest operates through a valid will, passes through probate, and is subject to the Statute of Wills. A donatio mortis causa bypasses the will and probate entirely, which is precisely why courts scrutinize it with care and why some jurisdictions have historically disfavored or limited it. The doctrinal tension is real: a donor who lacks capacity to execute a will, or who simply has not made one, cannot use a donatio mortis causa to accomplish what the Statute of Wills would otherwise require.
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Core Elements
1. CONTEMPLATION OF IMMINENT DEATH: The donor must apprehend death from a specific, present cause — typically illness or a concrete peril. A general awareness of mortality is insufficient. The contemplation must be immediate and specific.
2. DELIVERY: Actual or constructive delivery of the property must occur during the donor's lifetime. Delivery of a key to a lockbox, or of a document of title, may satisfy constructive delivery. Mere words of gift, without delivery, are void.
3. CONDITIONALITY: The gift is not absolute at the moment of transfer. It ripens into a complete gift only upon the donor's death from the apprehended cause. Survival, recovery, or revocation by the donor defeats the gift.
4. PERSONAL PROPERTY: The doctrine applies to personal property. Real property is generally excluded, though some modern jurisdictions have extended donatio mortis causa reasoning to certain intangibles or documentary interests.
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Why It Matters in Research
The principal research trap is jurisdictional variation on validity. Bouvier's signals this sharply: Pennsylvania and West Virginia courts historically rejected donatio mortis causa as invalid, while New York courts recognized it with dissent among their own judges. A researcher working with nineteenth-century American materials must locate the applicable state rule before relying on any general statement of doctrine.
The delivery requirement has generated the bulk of litigation and the most divergent case law. Historical sources treat it strictly; modern courts have shown flexibility with constructive delivery, particularly for bank accounts, safe deposit boxes, and documentary instruments. The corpus will reflect both the strict historical standard and the more permissive modern approach, and researchers should not assume continuity.
The relationship to the Statute of Wills is a recurring analytical theme. Courts in equity have used donatio mortis causa to relieve against the rigidity of testamentary formalities while simultaneously policing it carefully to prevent its use as a wholesale substitute for a will. Chancery opinions treating this tension are a distinct body of authority worth flagging when navigating the historical sources.
The corpus connection to Property Law — Personal Property: Gifts runs directly through the three-element structure. Researchers analyzing delivery, intent, or acceptance should use that encyclopedia entry as a doctrinal anchor and treat donatio mortis causa as the stress-test case where each element is disputed and the stakes are highest.
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Historical Dictionary Support
Black's Law Dictionary traces the doctrine through Blackstone (2 Bl. Comm. 514) and the civil law, framing it as a gift conditioned on apprehended imminent death with delivery of personal goods. The civil law formulation — "a gift under apprehension of death" — is reproduced nearly verbatim in Black's, reflecting the Roman law origins of the doctrine (civil law knew it as donatio mortis causa under the Digest).
Bouvier's is more practically useful for American research because it surveys the jurisdictional disagreement directly, noting states that held such gifts invalid (Pennsylvania, West Virginia) alongside New York authority. Bouvier's also preserves the temporal requirement that the illness must be affecting the donor at the time — not a general decline or past episode — and notes that a gift made only days or weeks before death, while ill, can satisfy the requirement.
Where the historical dictionaries fall short: neither Black's nor Bouvier's addresses the constructive delivery problem with the specificity that modern litigants need, and neither accounts for the extension of donatio mortis causa reasoning to financial instruments and account designations that dominate contemporary disputes. Researchers should treat historical dictionary authority as establishing the doctrinal framework but look to twentieth-century treatise and case law for the evolved delivery analysis.
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Jurisdictional Note
American jurisdictions diverged sharply on validity through the nineteenth century, with Pennsylvania and West Virginia rejecting the doctrine outright. Most U.S. jurisdictions now recognize donatio mortis causa but differ on what constitutes sufficient delivery, particularly for intangibles. English law, from which the doctrine was received, recognizes it consistently though with strict delivery requirements.
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Encyclopedia Cross-Reference
Property Law — Personal Property: Gifts (Inter Vivos, Causa Mortis — Delivery, Intent, Acceptance) [property_133]
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