Sunday, July 03, 2011

Heirs and inheritance (Part 2): Legitimes, free portions, and intestate shares

[1] The law that governs the issues on inheritance is the New Civil Code of the Philippines (NCC), not the Family Code..

[2]Testate or testamentary succession” refers to situations where the person dies leaving a last will. The person who executes a last will is called the “testator.”

The share in the inheritance is called “legitime.” The NCC provides for compulsory heirs” or certain people to whom the testator is obligated to give their legitimes.

In computing the legitimes, the remaining portion of the estate is called the “free” portion. The testator can give this portion to anyone.

[3]Legal or intestate succession” refers to situations where the person died without a last will; the share in the inheritance is called “intestate share.”

[4] “Extrajudicial settlement of estate” is a voluntary agreement among the heirs partitioning the estate (free of debts), executed before a notary public, and published once a week for three weeks in a newspaper of general circulation.

[5] A sole heir claiming the whole estate can file an“Affidavit of adjudication by sole heir” with the Register of Deeds (if real property is involved) or with the BIR.

Posted below is a comparative table of legitimes and intestate shares.

Surviving heir


Legitime


Intestate share



Illegitimate children

Surviving spouse
1/3

1/3

(Remaining 1/3 is free portion; Art. 894, NCC)
1/2

1/2
Illegitimate children

Surviving spouse

Legitimate parents
1/4

1/8

1/2

(Art. 899, NCC; testator may freely dispose of the remaining 1/8 of the estate.)
1/4

1/4

1/2
Illegitimate children

Legitimate parents
1/4

1/2
1/2

1/2
Legitimate parents

Surviving spouse
1/2

1/4 (taken from the free portion)

(Art. 893, NCC)
1/2

1/2
Illegitimate parents

Surviving spouse
1/4

1/4
1/2

1/2
Illegitimate children alone1/2 (divided by number of illegitimate children)

Remainder is free portion (Art. 901, NCC)
All
Legitimate parents alone1/2; remaining half is free portion (Arts. 889 and 890, NCC)All
Illegitimate parents alone1/2All
Surviving spouse alone1/2, 1/3, 1/2 (Art. 900, NCC)All
Legitimate children (or their descendants) alone1/2 (divided by the number of children)

Remaining half is free portion (Art. 888, NCC)
All
One legitimate child (or descendant)

Surviving spouse
1/2


1/4

Remaining 1/4 is free portion (Art. 892, NCC)
1/2


1/2
Two or more legitimate children (or their descendants)



Surviving spouse
1/2 (divided by the number of children)



Equal to the share of one child

Remainder is free portion (Art. 892, NCC)


Consider spouse as 1 legitimate child and divide estate by total number
Legitimate child

Illegitimate child
1/2

1/2 of each legitimate child (Art. 176, Family Code)

Remainder is free portion (Art. 892, NCC)
Please read Article 176 of the Family Code: computing the legitimes of legitimate and illegitimate children; an illegitimate child gets one-half)
Surviving spouse





Brothers and sisters (nephews and nieces, in case of deceased siblings)
1/2 (remaining half is free portion; Art. 900, NCC)


Not entitled to anything since they are not compulsory heirs; testator may choose to give them something out of the free portion
1/2





1/2 (divided by the number of brothers and sisters; nephews and nieces of deceased siblings divide among themselves the share that should have to their parents)

Art. 1001, NCC

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