Heirs and inheritance (Part 1): If your spouse dies without a last will, who will inherit?

Definition of terms: 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 last will; the share in the inheritance is called “legitime.” “Legal or intestate succession” refers to situations where the person died without a last will; the share in the inheritance is called “intestate share.” The person who dies and whose property is to be divided is called the “decedent.” Related posts: Disinheriting your spouse Disinheriting children and descendants, legitimate as well as illegitimate Article 176 of the Family Code: computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half Can nephews and nieces inherit from their grandparents, unmarried aunts or uncles? When a man is married to or living in with several women successively or simultaneously, who has the right to inherit from him? Right of representation Iron barrier between the legitimate and illegitimate sides of the family

Situation A: You and your deceased spouse have children.

1. Only you and your children are entitled to inherit under Article 996 of the New Civil Code of the Philippines. Your deceased spouse’s siblings, parents, or grandparents are excluded.

Art. 996. If a widow or widower and legitimate children or descendants are left, the surviving spouse has in the succession the same share as that of each of the children.

If any or some of your children died before your spouse, their legitimate children will be entitled to inherit by right of representation.

(Read below the steps in computing the inheritance.)

2. If your deceased spouse has illegitimate children, they are entitled to inherit under Article 176 of the Family Code. Please read my post on “how to compute the share of an illegitimate child.”

Situation B: You and your deceased spouse have no children.

1. If your deceased spouse’s parents (either father or mother, or both) are still alive, then you and the parents will inherit under Article 997 of the New Civil Code of the Philippines.

Art. 997. When the widow or widower survives with legitimate parents or ascendants, the surviving spouse shall be entitled to one-half of the estate, and the legitimate parents or ascendants to the other half.

If your spouse’s parents are already dead but other “ascendants” (like grandparents or great-grandparents) are still alive, Article 997 will also apply. Your spouse’s siblings, if any, are not entitled to inherit.

2. If your deceased spouse has illegitimate children, then you and the illegitimate children will inherit under Article 998 of the New Civil Code of the Philippines.

Art. 998. If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half.

In simpler terms, you will get 50% of the inheritance while the illegitimate children will divide among themselves the other 50%.

Article 998 applies even if your deceased spouse, at the time of death, had parents or siblings. Only you and the illegitimate children are entitled to inherit. If the illegitimate children died before your spouse, then you and the illegitimate children’s descendants (by right of representation) will inherit.

3. If your deceased spouse has illegitimate children and “ascendants” (parents, grandparents, or great-grandparents), then you, the illegitimate children, and the ascendants will inherit under Article 1000 of the New Civil Code of the Philippines.

Art. 1000. If legitimate ascendants, the surviving spouse, and illegitimate children are left, the ascendants shall be entitled to one-half of the inheritance, and the other half shall be divided between the surviving spouse and the illegitimate children so that such widow or widower shall have one-fourth of the estate, and the illegitimate children the other fourth.

In simpler terms, you will get 25% of the inheritance; your spouse’s illegitimate children will also get 25%; and the ascendants will get 50%.

Your spouse’s siblings, if any, are not entitled to inherit.

4. If your deceased spouse has no ascendants (parents, grandparents, or great-grandparents) or illegitimate children, but has siblings, then you and the siblings will inherit under Article 1001 of the New Civil Code of the Philippines.

Art. 1001. Should brothers and sisters or their children survive with the widow or widower, the latter shall be entitled to one-half of the inheritance and the brothers and sisters or their children to the other half.

In simpler terms, you will get 50% of the inheritance while the brothers and sisters will divide among themselves the other 50%.

The law does not distinguish between siblings of the full or half blood. If your deceased spouse’s father or mother had illegitimate children, these children cannot inherit from your spouse because of the “iron barrier” between the legitimate and illegitimate sides of the family.

If any of the siblings died before your spouse, then that sibling's legitimate children (meaning, your spouse’s nephews or nieces) will inherit by right of representation. These children will divide among themselves the share that should have gone to their parent (the deceased sibling).

5. If your deceased spouse has no illegitimate children, siblings, or ascendants (parents, grandparents, or great-grandparents), then you inherit everything.

Notes:

1. These articles do not apply if your marriage has been declared void, or you are the offending spouse in case of legal separation.

2. Steps in computing the inheritance:

• You must liquidate the community property (Articles 102 to 104 of the Family Code) or the conjugal partnership (Articles 129 to 33 of the Family Code).
• The remaining portion will then be divided among the heirs.

Liquidating the community property

Liquidating the conjugal partnership property

Art. 103. Upon the termination of the marriage by death, the community property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six months period, no liquidation is made, any disposition or encumbrance involving the community property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

Art. 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void. Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.

For example, you and your spouse have four children, and your spouse died leaving one million pesos in property.

1. Your share in the community property or conjugal partnership property is 50% or five hundred thousand pesos.
2. The remaining five hundred thousand pesos will be divided among the children, with you counted as one child.
3. Five hundred thousand pesos divided by five: you and the children will receive one hundred thousand pesos each as inheritance.

Summing up your share (1) in the inheritance and (2) in the community property or conjugal partnership property, as the surviving spouse, you will get six hundred thousand pesos.