Donation with suspensive condition of pre-mortem death

Article 485 of the Civil Code establishes the general prohibition of succession agreements, under which it is forbidden to carry out legal transactions concerning assets from a succession that has not yet opened or transactions that dispose of rights that would belong to the same estate.

In matters of succession, therefore, there is a general prohibition on mortis causa transactions, in place of the legal provision that the inheritance can only be devolved by law or by will. The rationale for this is found in the principle of absolute testamentary freedom, which guarantees the testator the right to modify or revoke their will at any time, without any constraints that might otherwise arise from legal transactions concerning assets destined to be part of the estate.

However, a mortis causa donation falls within the category of succession agreements and, therefore, is explicitly prohibited by law. That said, not all donations that are subject to the death of the donor are prohibited by law.

In this regard, attention should be given to the so-called "si praemoriar" donation, which is a donation conditioned upon the verification of the donor's premature death. This provision is legitimate and does not fall within the category of succession agreements. The validity of such a donation lies in the explicit identification of the individual assets evaluated by the parties in their consistency and objectivity at the time the agreement is perfected, and not upon the occurrence of the event of death.

What sets a donation with a "si praemoriar" condition apart from a mortis causa donation, explicitly prohibited by the legal system, is the immediacy of the attribution as well as its binding effect, which is deferred until the occurrence of the suspensive condition.

In fact, the "si praemoriar" donation is quite common in cases involving company shares, especially when the shareholder is suffering from a terminal illness. This is to ensure continuity in case the donor should pass away prematurely and to prevent the company shares from falling into the hands of heirs who are not able to manage them competently during the estate division.

"A donation with a suspensive clause of the donor's pre-morience produces immediate effects and concerns individual assets evaluated by the parties in their consistency and objectivity at the time the agreement is perfected, with the resulting immediacy of the attribution whose effectiveness is only deferred to the death; therefore, a violation of the prohibition on succession agreements can only result from the persistence of a residual power of disposal by the donor that undermines the irrevocability of the disposition and its immediate binding effect, and not from the greater or lesser probability of the suspensive event occurring. (In this case, the Court of Cassation confirmed the decision of the territorial court, which had excluded the nullity of a donation of company shares with a pre-morience clause of the donor made by an individual in the terminal stages of illness who had only a few months to live)."
(Civil Court of Cassation, Section II, 13/12/2023, No. 34858).

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