Skip to content
BOE-A-2026-1636 ·23 January 2026 ·Resolution Low impact
Tax

Donations with reserved power of disposal: potential classification as mortis causa donations

The Directorate General for Legal Certainty and Public Faith analyses the validity of registering a donation where the donor reserves the power to dispose of the assets for consideration (Facts I). The Registrar refused registration, considering that such clauses convert the donation into a mortis causa donation, which must be governed by the rules of testamentary succession rather than those of inter vivos donations (Facts II). The appeal challenges this classification to allow the registration of bare ownership in the Land Registry.

In 2 key points

  1. Reserving the power to dispose of assets for consideration may lead to a classification as a mortis causa donation (Facts II). (Hechos II)
  2. Mortis causa donations are governed by the rules of testamentary succession and cannot be registered as inter vivos donations (Facts II). (Hechos II)

How it affects those involved

For donors wishing to transfer bare ownership while maintaining control over the assets, there is a risk that reservation of disposal clauses may be interpreted as a mortis causa donation, preventing direct registration in the Land Registry (Facts II). This would force beneficiaries to follow testamentary succession procedures instead of inter vivos gratuitous transfers. Notaries and legal professionals must exercise extreme care in drafting these clauses to avoid negative classification by the Registrar.

Lifecycle

2026-01-23PublishedPublished in the BOE
Official text Based on BOE data (boe.es). Information, not advice.

Does this provision affect you?

The tax team reviews your specific situation.

Talk to the tax team
This analysis is informational only and does not constitute legal advice or create a client-adviser relationship. BM Consulting.
Email
Contact