Can an SPA Transfer All Assets Upon Death?

Wills, Donations, and Estate Planning for Same-Sex Partners in the Philippines

Short answer: No. A Special Power of Attorney (SPA) cannot transfer a principal’s assets after the principal dies. Philippine law treats an SPA as agency, and agency is extinguished by death. To pass property at death, you use succession (a will or the default intestacy rules), not an SPA. Everything else below builds on that core rule and shows what does work—especially for same-sex partners.

1) What an SPA is (and why it dies with you)

An SPA authorizes an agent to act for you, while you’re alive (e.g., sell property, sign documents, manage accounts).
It is not a will, trust, living will, or “transfer-on-death” instrument.
Death of the principal ends the agency. Any authority in an SPA automatically ceases at the principal’s death. An agent who signs after death has no authority.
Limited exception in practice: if an agent and a third person both didn’t know of the principal’s death at the time of the transaction, certain effects may be protected—but that doesn’t turn an SPA into an estate-transfer tool, and it’s a poor planning strategy.

Practical takeaway: Use an SPA for lifetime management (property/finances/healthcare). Use a will or a trust to control who gets what after death.

2) Valid ways to transfer property at death

A. Wills (Testamentary Succession)

Holographic will: Entirely handwritten, dated, and signed by the testator. No witnesses needed, but authenticity can be contested and must be proven.
Notarial will: Typed/printed in a language known to the testator; signed by the testator and three credible witnesses, with a proper attestation clause and acknowledgment before a notary.
Probate is mandatory (for any will). A court must allow the will before it transfers property.
Who may make a will: generally 18+ and of sound mind.

B. If there is no will: Intestate (Default) Succession

The Civil Code fixes a strict order: legitimate children/descendants, legitimate parents/ascendants, surviving legal spouse, illegitimate children, collateral relatives, then the State.
Unmarried partners (including same-sex partners) are not heirs by default.

C. The “legitime”: You cannot give everything away

Philippine law reserves portions of your estate for compulsory heirs. You can freely dispose only of the “free portion” after setting aside legitimes.

Typical patterns (simplified; other combinations exist):

With one legitimate child + a legal spouse → free portion often zero (the child’s and the spouse’s legitimes absorb the estate).
With two legitimate children + spouse → free portion roughly ¼.
With three+ legitimate children + spouse → free portion grows (e.g., ⅓ with three).
With legitimate ascendants + spouse (no children) → ascendants ½, spouse ¼, free ¼.
Only a spouse (no descendants/ascendants) → spouse ½, free ½.
Illegitimate children have their own legitime (generally half of a legitimate child’s equivalent share), which reduces the free portion further.

Disinheriting a compulsory heir is allowed only for legally specified causes and must follow strict formalities. Omitting a compulsory heir (preterition) can disrupt your will.

D. Estate settlement

With a valid will: probate.
Without a will and no debts: heirs may use extrajudicial settlement (Rule 74), if all are of age (or properly represented), with publication and compliance with registration/tax rules.

E. Taxes (very high-level)

Estate tax applies to the net estate at death; timelines and deductions (e.g., standard deduction, family home up to a cap), and installment/extension rules exist.
Donor’s tax applies to lifetime gifts. (See Section 3.)

Always check current BIR forms/rules before filing; rules change, and details matter.

3) Lifetime transfers that support your plan

A. Donations (inter vivos)

Real property: donation must be in a public instrument describing the property; the donee must accept in the same or a separate instrument (with proper notice if separate).
Movables: if > ₱5,000, donation must be in writing; smaller gifts can be oral but require simultaneous delivery.
Donor’s tax applies to net gifts above the annual exemption (rate and thresholds are set by the NIRC).
Reduction for inofficiousness: Donations that invade legitimes can be reduced after death.
Public-policy bars: Certain donations are void (e.g., those contrary to law/morals). A classic trap: donations between persons guilty of adultery/concubinage are void; this can affect gifts to a partner if either donor or donee is married to someone else. Get counsel before gifting in complex relationship situations.

B. Sales to a partner

A true sale for fair value is generally valid (with proper deeds, taxes, and fees), but beware of simulated sales (re-characterized as donations) and legitime issues.

C. Trusts

Inter vivos trust: You transfer assets during life to a trustee, under terms you set. Can help avoid probate for those assets and protect a partner (e.g., a lifetime usufruct or income right). Transfer taxes and formalities apply; immovables require proper deeds.
Testamentary trust: Created in a will (still needs probate). Useful to provide your partner use/income while preserving naked ownership for heirs.

D. Beneficiary designations

Life insurance and some retirement plans pay directly to named beneficiaries and bypass probate. Whether proceeds enter the taxable estate depends on factors like revocability and who’s designated.
Employer/plan rules may restrict who can be named. Unmarried partners are often allowed in insurance, but statutory benefits (e.g., government systems) favor legal spouses/children by default.

4) Special planning issues for same-sex partners (PH context)

Current legal landscape (big picture):

Same-sex marriage is not recognized in the Philippines.
A same-sex partner is not a compulsory heir and has no automatic status in hospitals, funerals, or estates.

What this means:

Without planning, your partner may receive nothing and may have no say on medical decisions or funeral arrangements.
Courts and institutions default to legal kin (spouse, children, parents, siblings).

Planning tools that work well:

A properly executed will
- Institute your partner as legatee/devisee within the free portion.
- Consider leaving a usufruct (right to use/occupy, e.g., the home for life) with naked ownership to your heirs—this balances family expectations and partner protection.
Inter vivos trust (or transfers now)
- Move select assets now (mind donor’s tax/fees), or fund a revocable/irrevocable trust for your partner’s support and housing security.
Co-ownership & title strategy
- If you buy property together, reflect co-ownership on title and keep clear records of each partner’s contributions.
- Note: Philippine land law does not recognize “joint tenancy with right of survivorship” the way some foreign systems do; your share will not pass automatically to your partner—your will/trust must say so (within the free portion).
Beneficiary designations
- Name your partner (where allowed) on life insurance, bank TOD/ITF-style accounts (if offered and legally effective), and private retirement plans. Keep designations up to date and consistent with your will/trust.
Medical & personal decision-making while alive
- Execute SPAs for healthcare and property/finance so your partner can act during incapacity.
- Add a written advance medical directive (treatment preferences) and a HIPAA-style consent/data-sharing letter for medical records (local hospitals often want explicit consent).
- Consider a separate funeral/cremation directive and disposition-of-remains authorization; in practice, funeral homes look to legal kin unless your documents are clear and available.
If children are involved
- Clarify parental status (biological/adoptive). A non-parent partner has no automatic parental rights.
- Use your will to nominate a guardian for minors (courts weigh this seriously).
- Consider life insurance and trusts to fund children’s care while also protecting your partner’s housing and livelihood.
Business & digital assets
- For a sole prop or corporation, put succession clauses in bylaws/partnership agreements and appoint successor signatories (separate from a personal SPA).
- Inventory digital assets (email, cloud drives, crypto, domains) and leave access instructions in a secure memorandum (not inside the will’s public text).

5) Common myths (and the truth)

“We have an SPA, so my partner can take everything when I die.” False. The SPA’s power dies with you. Use a will/trust/beneficiary plan.
“We titled the condo in both our names, so my partner gets it all automatically.” False. Your share passes by succession (will/intestacy), not by “survivorship.”
“I can just gift everything to my partner now and it will stick.” Risky. Donor’s tax, formalities, and later reduction for invading legitimes can undo or shrink those gifts.
“I can disinherit my children/parents because I want my partner to get all.” Generally false. Compulsory heirs have legitimes; disinheritance needs legal cause and strict compliance.

6) A practical, PH-specific checklist

Map your family: spouse? children (legitimate/illegitimate)? living parents? ascendants?
List assets & titles: separate vs. community/conjugal; co-owned property; business interests; digital assets.
Decide core goals: (a) housing security for partner, (b) income support, (c) children’s education, (d) business continuity.
Choose instruments:
- Will (with usufruct or testamentary trust for partner).
- Inter vivos trust (for specific assets).
- SPAs (health + property) and medical directives.
- Beneficiary forms (insurance/retirement/banks).
- Co-ownership agreement and contribution records.
Mind taxes & filings:
- Donations now → donor’s tax and proper deeds.
- At death → probate/extrajudicial settlement, estate tax return and deadlines.
Paper & access: notarize where required, keep certified copies, and tell your partner where originals are kept.
Review every 2–3 years or after major life events (new child, property purchase, breakup, reconciliation, business sale).

7) Worked mini-scenarios

Unmarried, no children, parents deceased: You may leave 100% to your same-sex partner via a will (or a trust). Consider also designating your partner as beneficiary on insurance and accounts.
Married to someone else, with two legitimate children: Your children and legal spouse are compulsory heirs. Depending on numbers, your free portion may be limited (e.g., often ¼ with two kids + spouse). You can benefit your partner only out of the free portion. Donations to a partner may be void if they fall under adultery/concubinage prohibitions—get counsel.
Unmarried, two acknowledged illegitimate children, no spouse: The children have legitimes; you can still carve out part of the free portion for your partner and/or give the partner a lifetime usufruct over the home.

8) What an SPA is good for (and how to draft it)

While you’re alive:
- Property/finance SPA: manage bank accounts, pay taxes, sign deeds (note: sale/mortgage/real-rights typically require special authority and a notarized SPA that specifically describes the acts and property).
- Healthcare SPA: consent to procedures, access records, choose hospitals/physicians per your preferences.
Drafting tips: be specific (assets and powers), include substitute agents, set effectivity (“effective immediately and during incapacity”), and provide acknowledgment for notarization/consularization if needed.

But again: An SPA stops at death. Pair it with a will/trust.

9) Putting it all together (a simple plan template)

Will that:
- (a) reserves legitimes; (b) gives partner a lifetime usufruct over the family home; (c) leaves specific legacies (cash/investments) to the partner from the free portion; (d) sets a testamentary trust for long-term support if needed; (e) nominates a guardian for minors.
Inter vivos trust (optional) funded now with select assets to ensure seamless support and probate-avoidance for those assets.
Beneficiary updates on insurance/retirement/banks (consistent with the will/trust).
SPAs (health + property) and a short advance directive.
Co-ownership agreement + tidy title and contribution records.
File/Tax discipline: keep copies; calendar estate tax and settlement steps for your executor/heirs.

Final notes (read me)

This is general information under Philippine law principles and common practice. It is not legal advice.
Small drafting choices (wording in a will, how a deed is signed, timing of a gift) can make big differences in validity and taxes.
Especially for same-sex partners—where default laws don’t protect you—get a Philippine counsel to tailor documents and coordinate probate, tax, property registration, and cross-border issues if any asset or partner is abroad.

If you want, I can draft a clean document checklist and a one-page planning roadmap you can take to counsel.