Donation for those who are conceived and not yet conceived

A donation can also be made in favor of a child who has already been conceived, or even in favor of the future children of a specific person who is alive at the time of the donation, even if those children have not yet been conceived.

This article explores the legal framework surrounding donations made in favor of both conceived and unconceived beneficiaries.

Administration of donated assets

Unless otherwise specified by the donor, the administration of the donated property is entrusted to the donor or their heirs, who may be required to provide appropriate guarantees.
If the donation is made in favor of a child already conceived, any fruits (i.e., benefits or income) accrued before birth belong to the donee. If the donation is made in favor of an unconceived child, the fruits remain with the donor until the donee is born.

Thus, the beneficiaries may include both conceived children and concepturi—those who are not yet conceived but may be in the future.

Conceived vs. concepturus: legal distinction

A person is considered conceived if they are born within 300 days of the execution of the contract. For a donation to a conceived child to be valid, conception must have already occurred. Otherwise, the contract is void due to the absence of one party, unless the requirements for a donation in favor of a concepturus are met.

In the latter case, the law requires that the persons from whom the child may be born must be named and alive at the time of the donation.

Donations and Multiple Births

In the case of a multiple birth, determining the intended donee depends on interpreting the donor's intent. If the donor did not specify the gender of the unborn child and the twins are of different sexes, in the absence of evidence to the contrary, it is presumed that the donation is meant for both.
If the donation is made in favor of the firstborn, the order of birth alone is generally not deemed a sufficient criterion. All children considered firstborn by common understanding should be treated as beneficiaries.

Donations in favor of unborn children and other beneficiaries

Another scenario involves a donation made jointly to an unborn child and other individuals. The legal treatment depends on whether the unborn donee is conceived or not.

If the child is conceived, ownership of the property is immediately transferred to the donee, creating co-ownership with the other beneficiaries. This co-ownership can be dissolved through a court-authorized partition, although the law typically suspends such division until the child is born.
If the donee is a concepturus, co-ownership arises between the donor and the other beneficiaries. If the donation involves defined shares, division can be carried out by the legal representative of the concepturus, with prior judicial approval. If the donation does not involve defined shares, the court may assign all or part of the donated assets to the existing beneficiaries.

Acceptance of the donation and legal representation

Acceptance of a donation made in favor of unborn children must be performed by those who will legally represent them after birth. In case of a conflict of interest between the donor and the donee, a special guardian may be appointed.

A key legal challenge lies in reconciling the contractual nature of the donation with the nonexistence of the beneficiary at the time of the agreement.

A widely respected opinion distinguishes between donations to already conceived children and to concepturi. In the first case, a distinct legal relationship is established in anticipation of the donee’s birth. In the second case, the donation is considered a progressively formed contract, becoming a proper donation upon acceptance by legal representatives, and producing legal effects only if and when the beneficiary is born.
The donation is deemed finalized once the donor becomes aware of the acceptance, after which it becomes irrevocable and cannot be altered.

Ownership between acceptance and birth

Unless otherwise stated by the donor, the administration of the donated assets remains with the donor or their heirs, who may be required to provide guarantees. This applies whether the beneficiary is conceived or not.

The donor does not definitively lose ownership of the property, as it only transfers to the donee if the child is born.

The issue of who owns the property between acceptance and birth is debated. One view holds that the donor retains ownership. Another view argues that the property is in a legal limbo—temporarily without an owner.
Nonetheless, scholars agree that once the donation is accepted, the donor loses the authority to dispose of the donated asset. According to some, the legal representatives of the unborn child may authorize the donor to sell the asset, thereby lifting the restrictions tied to the donation.

Alienation of donated property

If the donor disposes of the asset despite the prohibition, opinions diverge on the legal consequences. Some consider the act void, others see it as merely ineffective.

Another view, considering the donor’s title as resolvable ownership, regards alienation as valid if done out of necessity or clear benefit, resulting only in an obligation to reinvest the proceeds.
Legal representatives of unborn children are likewise generally prohibited from disposing of donated property. However, based on the unborn child’s vested expectancy, they may request precautionary measures to prevent harmful actions.

Fruits accrued before birth

Regarding the fruits accrued between acceptance and birth, the law distinguishes based on whether the donee is conceived or not.

If the donee is conceived, the birth has retroactive effect, and ownership of the fruits is attributed to the beneficiary from the date of acceptance.

If the donee is not yet conceived, the birth does not have retroactive effect, and the donor retains the fruits.

For further guidance on donations in favor of conceived or unconceived heirs, Agenzia delle Successioni and its professionals can offer expert assistance in both making and receiving such donations in full compliance with legal requirements.