Heirs and inheritance (Part 10): Can nephews and nieces inherit from their grandparents or from their unmarried uncles or aunts?

Summary / Definition of terms: 1. The law that governs issues on inheritance is the New Civil Code of the Philippines (NCC), not the Family Code. “Testate or testamentary succession” refers to situations where the person dies leaving a last will. “Legal or intestate succession” refers to situations where the person died without a last will. The person who dies and whose property is to be divided is called the “decedent.” The person who dies leaving a last will is called the “testator.” 2. If a person dies intestate (without a will), without a spouse, parents, legitimate or illegitimate children, then the collateral relatives like brothers and sisters, nephews and nieces will inherit. 3. Right of representation: Nephews and nieces already alive when the aunt or uncle died can inherit by representing their predeceased parents. 4. Iron barrier: If the nephews and nieces are illegitimate, then they are prohibited by Article 992 NCC from inheriting from the relatives of their father or mother like their uncles or aunts, or even from their grandparents. 5. Grandnephews and grandnieces in the collateral line cannot inherit by right of representation.

I have been asked several times about the right of nephews and nieces to inherit from their deceased grandparents or unmarried uncles or aunts. For example, I received this inquiry several months ago:

I have an aunt, Rowena, with no surviving ascendants, who never married, and has no legitimate or illegitimate children. She is survived by a younger sister, Josefa, a widower. Rowena’s other siblings, two brothers and another sister, have died.

All of Rowena’s siblings, Josefa and the three deceased, have children.

In case Rowena dies, who will inherit her estate? Josefa alone? Or Josefa jointly with the children of Rowena’s deceased brothers and sisters (meaning the nephews and nieces)?

The New Civil Code of the Philippines (NCC), not the Family Code, governs the issues on inheritance. Testate or testamentary succession refers to situations where the person dies leaving a will (or testament). Legal or intestate succession refers to situations where the person died without a will. The person who dies and whose property is to be divided is called the decedent. The person who dies leaving a will is called the testator. The specific laws on inheritance are:

Title IV. Succession (Articles 774 up to 1105)
Chapter 2. Testamentary Succession (Articles 774 up to 959)
Chapter 3 Legal or Intestate Succession (Articles 960 up to 1014)
Chapter 4. Provisions Common To Testate and Intestate Successions (Articles 1015 up to 1105)

If a person dies intestate, without a spouse, parents, legitimate or illegitimate children, then the collateral relatives (brothers and sisters, nephews and nieces) will inherit

Articles 1003 to 1010 are the NCC’s governing rules on the right of collateral relatives to inherit when a person dies intestate (without a last will):

Art. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

Art. 1004. Should the only survivors be brothers and sisters of the full blood, they shall inherit in equal shares.

Art. 1005. Should brothers and sisters survive together with nephews and nieces, who are the children of the decedent's brothers and sisters of the full blood, the former shall inherit per capita, and the latter per stirpes.

Art. 1006. Should brother and sisters of the full blood survive together with brothers and sisters of the half blood, the former shall be entitled to a share double that of the latter.

Art. 1007. In case brothers and sisters of the half blood, some on the father's and some on the mother's side, are the only survivors, all shall inherit in equal shares without distinction as to the origin of the property.

Art. 1008. Children of brothers and sisters of the half blood shall succeed per capita or per stirpes, in accordance with the rules laid down for the brothers and sisters of the full blood.

Art. 1009. Should there be neither brothers nor sisters nor children of brothers or sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood.

Art. 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of relationship in the collateral line.

The “iron barrier” between the legitimate and illegitimate sides of the family

Update as of September 15, 2019: The Supreme Court is set to discuss Article 992 of the Civil Code which says an illegitimate child has no right to inherit from the legitimate relatives of his father or mother. Supreme Court tackles inheritance rights of illegitimate children Experts to SC: Strike down law that discriminates vs illegitimate children

Article 992 of the NCC states:

An illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

This is known as the “iron barrier” that separates the legitimate and illegitimate sides of a family. Thus, in the example I cited at the top of this post, if the nephews and nieces are illegitimate, then they are prohibited by Article 992 from inheriting from the relatives of their father or mother like their uncles or aunts, or even from their grandparents.

This barrier may sound harsh and unfair to some people. For a fuller discussion of the “iron barrier,” please read the Supreme Court decision in Anselma Diaz vs. IAC, G.R. No. L-66574 February 21, 1990.

Right of representation

Coming back to the question posted above, can these nephews and nieces whose parents predeceased (died before) their aunt Rowena died have the right to inherit from her? The legal issue here is the right of representation that is governed by Articles 970 to 977 of the New Civil Code of the Philippines (NCC). Let’s take note first of Article 1025 NCC which states:

“In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper.

A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in Article 41.”

The wording of Article 1025 has caused some confusion. A lot of lawyers will tell you that these nephews and nieces do not have the right to inherit since their parents predeceased the aunt. These lawyers will emphasize the phrase “no exception” as discussed in the book “Civil Code of the Philippines Annotated, Volume III, Wills and Succession” by Justice Edgardo Paras. As Justice Paras says in page 474 of his book:

“Even in case of representation, the representative must already be alive or at least conceived at the time the succession opens. He himself must be capable of succeeding the decedent.”

Also, civil law expert Desiderio P. Jurado says in pages 480 and 481 of his book “Comments and Jurisprudence on Succession” that “it is essential that the representative must be living at the moment the succession opens.”

Nephews and nieces already alive when the aunt or uncle died can inherit by representing their predeceased parents

The proper interpretation of Article 1025 is this:

Were the nephews and nieces already alive when the succession opened, that is, when the aunt died? If yes, then they have the right to inherit by representing their parents. They will inherit together with the surviving brothers and sisters of the aunt. Their share is whatever the share of each brother or sister, to be divided equally among them.

For another example, let’s say there are five brothers and sisters A, B, C, D and E. Then A died before E, leaving four children who are all alive at the time their aunt E died. Let’s call the four children (nephews and nieces of E) as U,V, W and X. Let’s say that each of the brothers and sisters (including A who predeceased E) is entitled to Php 500,000. as their share in the inheritance on a per capita basis. The four children (the nephews and nieces) will then divide among themselves the Php 500,000. share of A on a “per stirpes” basis.

“Per stirpes” and “per capita” division of the inheritance

The “per stirpes” basis means that the four children’s individual shares will not be equal to the share of the remaining siblings. The NCC speaks of shares “per capita” and “per stirpes.” The four siblings (A, B,C and D) are entitled to inherit from E on a per capita basis. Since A has died, his children (nephews and nieces U,V, W and X) will inherit by right of representation of their father A. Their share in the inheritance will be on a per stirpes basis.

In simple terms, the shares of the siblings (B, C and D) who are still alive are greater than that of the nephews and nieces U,V, W and X. This is because they will inherit fully their share while the nephews and nieces will divide among themselves the respective share that was supposed to go to A.

Grandnephews and grandnieces cannot inherit by right of representation (collateral line)

As I said, the right of representation is discussed in Articles 970 to 977 of the NCC. What about grandnephews and grandnieces? Well Article 972 provides that, in the collateral line, the right of representation extends only to nephews and nieces. In other words, grandnephews and grandnieces cannot inherit by right of representation from their unmarried great-uncles or great-aunts.

On a related issue, can great-grandchildren inherit from their great-grandparent by right of representation? Yes, as long as they are not excluded by the “nearer excludes farther” principle, and that they were already alive when the great-grandparent died. This principle means that if the father or mother of these great-grandchildren are still alive, the father or mother will inherit because they are nearer in degree to the great-grandparent.

Example of testate succession (inheritance through a will)

Situation: the unmarried aunt or uncle has a surviving parent, two legitimate siblings and several illegitimate siblings, and he/she wants to have a last will.

In intestate succession, the law provides who the compulsory heirs are (that is, who are legally entitled to inherit). In testate succession, the testator cannot simply give his or her properties to anyone. The NCC enumerates who the compulsory heirs are; they cannot be deprived of their legitime except in valid cases of disinheritance (please read my posts on disinheriting children and descendants, legitimate as well as illegitimate and disinheriting your spouse).  

Under Article 887, the following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly proved.

The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code.

Thus, in the situation I described above, the only compulsory heir of the unmarried aunt or uncle is his or her surviving parent. The legitimate and illegitimate siblings are not compulsory heirs and therefore can be left out in the will.

What if the unmarried uncle or aunt wants to give these siblings (or some other persons) something? In this situation, under Article 889 NCC, the unmarried uncle or aunt must give 50% of the properties to his or her compulsory heir (the surviving parent) as the legitime. The remaining 50% is called the free portion and the testator can give this to whoever he or she wants to, with certain exceptions provided under Article 1027 NCC. Please read Articles 866 to 914 NCC for an enumeration of the legitimes and compulsory heirs.