Articles 103 and 130 of the Family Code provide that before getting married again, you must:
[1] liquidate the community property or the conjugal partnership, and
[2] settle the estate of your deceased spouse.
If you don’t do these things, your subsequent marriage will be governed automatically by the regime of complete separation of property under Articles 143 to 146 of the Family Code. In simple terms, you and your subsequent spouse will not have any community property or conjugal partnership property to speak of.
Why? The Family Code seeks to protect the heirs of the deceased spouse, especially the children, by preventing:
[a] the dissipation of the assets of the first marriage, and
[b] complications in determining which property belongs to what marriage.
If you are the child of a parent who wants to get married again after the death of your other parent, you can insist that your share in the inheritance be given first to you. If your parent refuses, as a final resort, you can file a petition for judicial settlement of your deceased parent’s estate.
| Liquidating the community property and settling the estate of the deceased spouse | Liquidating the conjugal partnership property and settling the estate of the deceased spouse |
| 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. |
