Gifts Causa Mortis

“Causa mortis” is Latin for, “because of death.” A gift causa mortis is a gift that is made in contemplation of impending death. The classic example is a gift made by a donor who is on his or her death bed. However, for the gift to be considered causa mortis, the donor does not actually have to be dying. It is sufficient that the donor make the gift because he or she know that he or she is about to enter a situation in which there is a strong chance of death. For example:

1. John is about to undergo quadruple bypass surgery, during which he has approximately a 50% chance of surviving. Before entering the surgery, he calls over his friend, William and says “You’ve always been a good friend William. Here, take my Rolex watch.” He then gives William the watch. This would undoubtedly be considered a gift causa mortis.
2. John is a Marine. He is about to be deployed to the Persian Gulf and he is worried that he will not make it home. Before leaving, he calls over his friend, William and says “You’ve always been a good friend William. Here, take my Rolex watch.” He then gives William the watch. This might be considered a gift causa mortis (it can probably be argued either way).

See Gonzales v. Zerda, 802 S.W.2d 794 (Tex. App. 1990).  

The requirements for making a gift causa mortis are the same as those requirements for making an inter-vivos gift. The donor must intend to give the gift, the donor must deliver the property; and the donee must accept the gift. Also, all three elements must be completed before the donor dies. Otherwise, the gift is invalid.

There are two differences between the effect of an inter-vivos gift and a gift causa mortis. Both differences involve revocation of the gift.

The first difference is that gifts causa mortis are revocable. Recall that an inter-vivos gift is completely irrevocable. Once the gift is completed, the donor has no rights whatsoever in the property. However, a gift causa mortis can be revoked by the donor at any time, for any reason. Therefore, while gifts causa mortis are actually completed upon the delivery and acceptance, the actual right to keep the gift is only secured once the donor dies. (Once the donor dies, the gift becomes irrevocable.)

The second difference is that if the situation that caused the donor to be in contemplation of impending death passes, the gift is automatically revoked. For example:

1. John is about to undergo quadruple bypass surgery, during which he has approximately a 50% chance of surviving. Before entering the surgery, he calls over his friend, William and says “You’ve always been a good friend William. Here, take my Rolex watch.” He then gives William the watch. Right before the surgery is to begin, John changes his mind and says “Never mind. I want that watch to go to my wife instead.” The gift is revoked, and even if John dies during the surgery, William has no right to the watch and he must return it.
2. John is about to undergo quadruple bypass surgery, during which he has approximately a 50% chance of surviving. Before entering the surgery, he calls over his friend, William and says “You’ve always been a good friend William. Here, take my Rolex watch.” He then gives William the watch. Luckily, John pulls through the surgery and recovers from his illness. The gift of the watch is automatically revoked and William must give it back. Of course, if he so chooses, John may simply make another gift of the watch to William. This time, it would be an inter-vivos, and thus an irrevocable, gift.