Executive summary

Short answer: The surviving spouse may sell only his/her own undivided share in the former conjugal/community property without the children’s consent.
The surviving spouse cannot validly sell the deceased spouse’s share (which already belongs to the estate/heirs) without the heirs’ participation (and, if under estate proceedings or involving minors, court approval).
If the property is the family home, extra safeguards apply: alienation generally requires the consent of the surviving spouse and the heirs/beneficiaries, or court approval.
Before any sale, liquidation of the property relations and settlement of the estate (including estate tax) should be properly handled; otherwise, the sale risks being ineffective beyond the seller’s own share and may be unregistrable or voidable to that extent.

1) Why the answer depends on the property regime and timing

A. Property regimes

Absolute Community of Property (ACP) – the default for marriages under the Family Code (generally marriages from 1988 onward, absent a marriage settlement).
Conjugal Partnership of Gains (CPG) – typical for marriages under the old Civil Code or when spouses opt for it by marriage settlement.
Separation of Property – by valid pre-nuptial agreement.

Key point on death: The property relations are dissolved. In ACP, each spouse has an equal interest, so upon death, one-half belongs to the surviving spouse; the other half forms part of the decedent’s estate. In CPG, the net conjugal partnership assets are determined first, then partitioned between the surviving spouse and the estate.

B. Co-ownership after death

Until there is proper liquidation and partition, the surviving spouse and the heirs are co-owners of the decedent’s share. Under co-ownership rules, a co-owner may sell his/her own undivided share without the others’ consent, but cannot convey the specific property in full nor the shares of the other co-owners. Any such “full” sale transfers only what the seller actually owns.

2) What the surviving spouse may sell—without children’s consent

The surviving spouse may sell his/her own undivided one-half (ACP) or the net share determined after liquidation (CPG) without the children’s consent.
The deed should expressly limit the transfer to the seller’s undivided interest, to avoid implying a sale of the entire property.
The buyer steps into the seller’s shoes as a co-owner and remains subject to subsequent partition.

Practical caution: If the land title (TCT/CCT) still stands in the names of both spouses, the Registry of Deeds will scrutinize whether the deed purports to transfer the whole property. A deed that correctly conveys only the seller’s undivided share may be annotated, but issuing a new title typically awaits settlement of the estate and partition.

3) What the surviving spouse may not sell—without the children’s consent

The surviving spouse cannot sell the decedent’s undivided share without the consent of all heirs (which include legitimate, illegitimate, and adopted children, and, in some cases, the decedent’s parents if there are no descendants), or without court authority if the estate is under judicial administration.
If minors or persons under disability are heirs, their consent requires a legal representative and, for dispositions affecting their shares, court approval.

4) Special rule: the family home

If the property is the family home:

During the marriage, it cannot be sold without both spouses’ written consent, or court approval.
After a spouse dies, the family home continues for the benefit of the surviving spouse and minor children (and certain dependents), typically up to 10 years or while occupied as such.
Alienation in this period usually requires the consent of the surviving spouse and the beneficiaries/heirs or court authority.
Even beyond the protected period, if the property remains under co-ownership with the heirs, a sale of the entire property still requires their participation or a partition first.

5) The role of estate settlement (and taxes)

A. Extrajudicial vs. judicial

Extrajudicial Settlement (Rule 74): Allowed if the decedent left no will and no debts (or debts are fully paid), and all heirs are of legal age (or minors are properly represented). Heirs (including the surviving spouse for the estate’s share) execute a Deed of Extrajudicial Settlement (or Adjudication), publish it, and proceed with transfer and partition.
Judicial Settlement/Administration: Required when there are debts, disputes, minors, a will, or other complications. Sales of estate properties generally require court approval.

B. Estate tax and clearances

The decedent’s estate is subject to estate tax. Transfer and registration of real property require compliance with BIR requirements and the issuance of a CAR (Certificate Authorizing Registration) before the Registry of Deeds will effect transfers.
Attempting to convey the decedent’s share without estate tax compliance and proper settlement risks registration denial and potential tax liabilities.

6) Typical scenarios and outcomes

Spouse sells the whole property alone, post-death, with no settlement.
- Effect: The sale is effective only up to the seller’s undivided share; it does not bind the heirs as to their shares. Buyer becomes a co-owner with the heirs and faces partition.
Spouse sells only his/her undivided share, properly worded.
- Effect: Valid without children’s consent. Title work may result in annotation of the transfer; full re-titling awaits partition.
Property is the family home, minor children remain.
- Effect: Sale of the entire property typically needs heirs’ consent (including representation for minors) or court approval. Without it, the sale is defective as to the protected interests.
There is an ongoing probate/estate case.
- Effect: Dispositions of estate assets (including the decedent’s share of former conjugal/community property) generally require court approval; selling without it risks nullity as to the estate’s share and possible contempt.
Heirs sign an Extrajudicial Settlement assigning the entire property to the surviving spouse.
- Effect: Once validly executed, published, and taxes paid, the surviving spouse becomes sole owner and may sell alone.

7) Guardianship and minors’ shares

Where minors are heirs, any waiver or sale of their hereditary shares requires a duly appointed guardian and court approval, showing the transaction is necessary and beneficial to the minor.
Transactions made without such approval are vulnerable to annulment or to being set aside as to the minors’ interests.

8) Documentation blueprint (to do it right)

Identify the regime (ACP/CPG/Separation) and inventory the assets.
Determine debts and estate-tax exposure.
Choose the track:
- Extrajudicial settlement (no will, no debts; all heirs capacitated) or
- Judicial settlement (if any disqualifying factor exists).
For a limited sale by the surviving spouse without heirs’ consent, draft the deed to convey only the seller’s undivided share and disclose the co-ownership status.
If selling the whole: obtain heirs’ signatures (and guardianship/court approval if needed), or secure a court order in estate proceedings.
Secure BIR CAR, pay taxes/fees, and handle Registry of Deeds processes (including annotation or issuance of new TCT/CCT after partition).

9) Risks of skipping steps

Registration hurdles (Registry will not transfer the whole without proof of settlement).
Partial validity only (buyer acquires just the seller’s undivided share).
Future litigation (annulment of sale as to heirs’ shares, reconveyance, partition suits).
Tax penalties (for non-payment of estate taxes).
Violation of family home protections (voidable/void transfers; damages).

10) Quick decision tree

Is the property the family home?
- Yes: Expect heirs’ consent (and court approval if minors) or court authority.
- No: Go to 2.
Has the estate been settled (extrajudicial/judicial) and partitioned?
- Yes: Follow title; if spouse is now sole owner, spouse can sell alone.
- No: Go to 3.
What is being sold?
- Only the surviving spouse’s undivided share: Children’s consent not required.
- The entire property or the decedent’s share: Children/heirs must consent (and court approval if applicable).

11) Sample clauses (for clarity in deeds)

Clause for sale of undivided share only

“Vendor, as surviving spouse of the late ________, hereby sells, transfers, and conveys to Vendee only Vendor’s undivided interest in the property described herein, presently held in co-ownership with the heirs of the decedent, without prejudice to the rights of said co-owners and to the final liquidation and partition of the estate.”

Disclosure on co-ownership

“The parties acknowledge that the property remains under co-ownership pending liquidation and partition, and that this sale does not convey or prejudice the shares of the other co-owners.”

12) Key takeaways

No consent needed from the children if the surviving spouse sells only his/her undivided share.
Consent (or court approval) required to sell the entire property or the decedent’s share, and in transactions affecting the family home or minors’ shares.
Proper estate settlement, tax compliance, and careful drafting are essential to avoid defects and future disputes.

This article provides general information on Philippine law. For specific transactions—especially where the property is the family home, the heirs include minors, there are debts, or an estate case is pending—obtain tailored legal advice and ensure full compliance with procedural and tax requirements.