Saturday, February 02, 2008

Questions and answers on inheritance: no children and without a last will

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:
Question: My brother’s wife died without leaving a last will. They have no children. Besides my brother, among her surviving relatives are her parents, several brothers and sisters and some nephews and nieces. Who is entitled to inherit from her and what are the shares?


1. The New Civil Code of the Philippines (NCC) contains the rules on succession, not the Family Code. (In layman’s terms, succession is inheritance.) Please browse the NCC section of my Family Matters website for the complete provisions on succession.

Since there was no last will and testament executed by your brother's wife, then the rules on legal or intestate succession must be followed.

2. When a husband or wife dies without any children, then under the NCC rules on intestate succession, the compulsory heirs and their respective shares are in their proper order:
A. The surviving spouse gets one-half of the estate, and the surviving parents of the deceased also get one-half.
This is provided by Article 997 of the NCC which states, “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.”

B. If the parents are dead, then the surviving spouse gets one-half, and the other half goes to the brothers and sisters, nephews and nieces (representing any deceased sibling of the deceased spouse).
This is provided by Article 1001 of the NCC which states, “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.”
Please take note that if the parents are alive (or if only the father or mother is alive, as the case may be), then the brothers and sisters, nephews and nieces will not have a share in the inheritance. This is based on the principle in succession known as “nearer excludes farther.”

The share of the surviving spouse in the community property or in the conjugal partnership property will first be deducted from the estate. The remaining portion after the deduction will then be divided according to the proportions set by Articles 997 and 1001 of the NCC.

3. Article 103 of the Family Code provides the procedure for the liquidation of the community property in case of death. The articles states,
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.
Article 103 is reproduced verbatim in Article 130 of the Family Code. The article governs the liquidation of the conjugal partnership property.

Both Articles 103 and 130 speak of the liquidation of the community property or of the conjugal partnership property in the “proceeding for the settlement of the estate of the deceased.” This proceeding in the settlement of the estate of the deceased is Rule 73 of the Rules of Court. Under Rule 73, any of the compulsory heirs can file a petition in court to have the estate judically settled. To avoid dissipation of the estate, the petition should be filed immediately.

If all the heirs can come to an agreement, however, then they could just execute a deed of extrajudicial settlement of estate. This is much faster and less costly than going to court to have the estate judicially settled.


geronimo said...

Dear Atty.,
Your site is very informative on legal issues. I want to ask about the estate of my uncle who died intestate last Nov. 30, 2007 in Ilocos Sur. He is survived by his third wife named Aida whom he got married to on July 30, 1995 in Manila but prior to this he also married Emily also in Manila on July 20, 1989. All of his 3 brothers are dead but he has 2 nephews(of which I am one, the other one is my brother) and 2 nieces(my sisters. Who is entitled to inherit from him?

Atty. Gerry T. Galacio said...

Your uncle was legally married to Emily in 1989 and so, the marriage to Aida in 1995 was bigamous and void. In terms of Aida’s share in whatever properties she and your uncle acquired, Article 148 of the Family Code applies. The said article provides:

“Only the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions. In the absence of proof to the contrary, their contributions and corresponding shares are presumed to be equal. The same rule and presumption shall apply to joint deposits of money and evidences of credit”.

In terms of the inheritance, however, Aida (because of her bigamous and void marriage) does not qualify to inherit from your uncle. The term “surviving spouse” used in the New Civil Code of the Philippines refers to a legitimate spouse. In your situation therefore, Article 1005 of the NCC will govern. The said article states:

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.

Per capita means inheriting in his or her own right while per stirpes means that inheritance is by right of representation. Since there are no surviving brothers or sisters of your uncle, then you (the nephews and nieces) will be inheriting by your own right and no longer by virtue of representation. You will each be entitled to one-fourth of the estate of your uncle. Please read the Supreme Court decision in GSIS vs. Custodio 26 SCRA 658. Just go to the library of any law school and say that you are looking for this case, OR try to see if the Chan Robles website has a copy of this decision.

As I said, Aida may not be qualified to inherit from your uncle but she is entitled to whatever share is due her under Article 148 of the FC. Meaning her share must be deducted first from your uncle's estate. After such deduction, then you and your siblings will now share in the inheritance.

You should consult other lawyers who might give you other perspectives on your situation.