Children’s Inheritance Rights to Property Titled to the Surviving Parent (Philippine Law)

Plain-English guide to what kids (minor or adult, legitimate, illegitimate, or adopted) can claim when a parent dies and the real estate or other assets are in the name of the surviving parent.

1) First principles: what do children inherit from?

Children inherit from the estate of the deceased parent—not from the surviving parent’s own property. So the core tasks are to (a) identify what actually belongs to the estate, and (b) apply the succession rules (legitimes/compulsory shares or intestacy) to that estate.

Title ≠ ownership. A Transfer Certificate of Title (TCT) or car OR/CR in the surviving parent’s name does not conclusively prove it’s 100% theirs. If any part is truly the deceased’s, the children co-own that part by succession from the moment of death.

2) What part of a titled asset is really in the estate?

Step A — Determine the marital property regime

Marriages on/after 3 Aug 1988 (Family Code): default is Absolute Community of Property (ACP) unless there’s a valid prenup.
Marriages before 3 Aug 1988 (Civil Code): default is Conjugal Partnership of Gains (CPG) unless there’s a valid prenup.
With a prenup: follow that contract.

Step B — Classify the property

Under ACP (Family Code):

Community (generally): property acquired for value during the marriage, and the fruits/income of any property.
Exclusive of a spouse: property owned before marriage; property acquired by gratuitous title (donation/inheritance) during marriage to that spouse alone; and property for personal/exclusive use (except jewelry).
Effect at death: Liquidate the ACP. Half goes to the surviving spouse; the other half is the estate to be inherited by children (and possibly the spouse again as heir).

Under CPG (Civil Code default pre-1988):

Conjugal: property acquired for value during the marriage, and the fruits/income of either spouse’s exclusive property.
Exclusive: property brought into the marriage and property acquired by gratuitous title (plus certain personal items).
Effect at death: Liquidate the CPG. Net conjugal gains are split 50/50; the deceased’s one-half share forms part of the estate.

Key takeaway: Even if a house lot is titled in the surviving parent’s name, if it was acquired for value during marriage (and not exclusive), half typically belongs to the surviving spouse and half to the deceased. The deceased’s half is what children inherit from.

3) Who are the children-heirs?

Philippine law protects compulsory heirs (they cannot be deprived of their minimum “legitime” except for very narrow grounds for disinheritance):

Legitimate children and their descendants (including adopted children—treated as legitimate).
Illegitimate children (entitled to legitimes; proof of filiation required).
Surviving spouse (also a compulsory heir, separate from the children).

Stepchildren have no successional rights from the stepparent unless adopted. Grandchildren inherit by representation if their parent (the deceased’s child) predeceased or is incapable.

4) How much do children get? (The logic you’ll use)

There are two big scenarios:

A) No will (intestate succession)

The estate is split by statute.

If there are legitimate children and a surviving spouse: they share equally in the whole estate.
- Example: Estate = ₱12M; heirs = spouse + 2 legitimate children → ₱4M each.
If there are legitimate and illegitimate children together: illegitimate children also inherit but each gets half of a legitimate child’s share.
- Example: Heirs = spouse + 1 legitimate child + 1 acknowledged illegitimate child. First, treat “one unit” as the share of a legitimate child. Then: spouse = 1 unit; legitimate child = 1 unit; illegitimate child = ½ unit. Total = 2.5 units → Divide estate proportionally.

Practical tip: In mixed families, do the “unit” method: each legitimate child = 1 unit; each illegitimate = ½ unit; spouse = 1 unit (when concurring with legitimate children). Then allocate proportionally.

B) With a will (testate succession)

The testator can only dispose of the free portion, after reserving each compulsory heir’s legitime.
Legitimate children’s legitime = ½ of the estate, divided equally among them.
Surviving spouse’s legitime when concurring with legitimate children = equal to the legitime of one legitimate child (computed from that ½).
Illegitimate children’s legitime = ½ of a legitimate child’s legitime.

The exact arithmetic can get nuanced depending on the constellation of heirs. When in doubt, compute the legitimes first, then see what’s left as free portion for the will to distribute.

5) Special issues because the title is in the surviving parent’s name

Administration vs. ownership. After death, the surviving spouse often manages properties, pays debts, and deals with taxes. That doesn’t convert the deceased’s share into their exclusive asset. Children are co-owners (pro-indiviso) of the deceased’s share immediately upon death.
Sale or mortgage by the surviving parent.
- A sale of a property that includes the estate’s undivided share (without the other heirs or a court order) is generally valid only to the extent of the seller’s own share. The heirs can recover or annotate an adverse claim/lis pendens for the rest.
- If any heir is a minor, a sale affecting the minor’s share needs court approval (guardianship/approval of compromise), otherwise it is voidable.
“Self-adjudication” documents. A surviving spouse cannot use an Affidavit of Self-Adjudication (Rule 74) if the deceased left children, because there are other heirs. The proper route is an Extrajudicial Settlement among all heirs (if allowed), or judicial settlement/probate.
Third-party buyers. A clean title in the spouse’s name after questionable transfers does not immunize the buyer from the heirs’ claims if the transfer exceeded the spouse’s share. Buyers should require eCAR, proper settlement documents, and proof of heirs’ consent.

6) How children actually assert and protect their rights

A) Inventory & classification

Collect:

Death certificate, marriage certificate(s), children’s birth certificates/adoption decrees
Titles/ORCR, tax declarations, bank statements, corporate records
Prenup (if any), donation deeds, past deeds of sale
Proof of how/when properties were acquired (to classify ACP/CPG/exclusive)

B) Choose settlement path

Extrajudicial (no will, no unpaid debts, all heirs of age and consenting): Execute a notarized Extrajudicial Settlement (EJS), publish notice (Rule 74), file estate tax return and pay taxes, secure BIR eCAR, and transfer titles in the heirs’ names (or to a buyer if selling).
- If there are minors or disagreements → extrajudicial is not available; go judicial.
Judicial:
- Testate (with will): probate the will; the court settles the estate.
- Intestate (no will): court appoints administrator, approves inventory, debts, partition.

C) Taxes & transfer

Estate tax return and payment (BIR Form 1801), eCAR issuance, and registration with the Registry of Deeds/LTO/SEC as needed.
Standard deductions and family home deduction may apply (law currently sets a single estate tax rate; check current BIR rules when filing).

D) Safeguards for minors

A legal guardian handles the minor’s share, subject to court authority for any sale/mortgage/compromise. Funds are typically held in trust, with accounting obligations.

E) Remedies when things go wrong

Reconveyance/annulment if the surviving spouse transferred more than their share, or if there was fraud in an EJS.
Reduction of inofficious donations if lifetime gifts by the deceased impaired legitimes.
Adverse claim/lis pendens on titles to give notice of the dispute.
Prescription: property/contract actions have time limits (generally counted from registration or discovery; minors’ periods are tolled while under age). Get counsel early.

7) Illegitimate children: what to know

They are compulsory heirs, but their legitime/share is generally half of a legitimate child’s in the same scenario.
Filiation is key. Proof can include a signed birth certificate, notarized recognition, admissions, or court-admitted evidence (including DNA).
Surnames and parental authority rules (e.g., RA 9255) are separate from successional rights; recognition, not the surname, is what ultimately matters for inheritance.

8) Donations, advances, and collation

Lifetime donations to a child are presumed advances of inheritance (collation) and are brought into the mass of the estate for computation of legitimes.
Inofficious donations (those that reduce compulsory shares) are reduced to protect legitimes—even if made years earlier.

9) Family home and co-ownership after death

The family home is generally part of the estate (subject to statutory protections). It may be temporarily non-partitionable while the surviving spouse or an unmarried minor child continues to live there, and it enjoys execution exemptions within limits.
Until partition, the heirs (including the surviving spouse) are co-owners of the deceased’s share; each has rights to possession, income (pro-rata), accounting, and to demand partition at the proper time.

10) Blended families, second marriages, and cross-marriage assets

Children from the first marriage inherit from their deceased parent’s half of the former community/conjugal assets.
If the surviving spouse remarries, assets of the new property regime are separate from the first estate; children of the first marriage do not inherit from the new spouse (unless adopted).
Watch for commingling and keep documentary trails clean to avoid future disputes.

11) Overseas/foreign elements (quick conflict-of-laws primer)

Form and registration of transfers follow the law where the property is located (lex situs).
Order of succession, amounts of legitimes, and intrinsic validity of wills generally follow the national law of the decedent. Dual citizenship and foreign wills can complicate things—get tailored advice.

12) Practical checklists

If you’re a child and the property is in the surviving parent’s name

Freeze and fact-find: Gather documents (titles, receipts, bank statements, prenup).
Classify each asset (ACP/CPG/exclusive) to isolate the deceased’s share.
Choose settlement: EJS (if allowed) or court (probate/intestate).
Secure eCAR and retitle only after proper settlement.
If selling and a minor is an heir: get court approval first.
If the surviving parent is transferring without you: annotate an adverse claim/lis pendens and consult counsel for reconveyance.

Documents you’ll likely need

Death & marriage certificates, children’s birth/adoption certificates
Titles/ORCR, tax declarations, tax clearances
Prenup or marriage settlements (if any)
Last will (if any), prior donations (for collation)
Estate tax filings and BIR eCAR once issued

13) Common myths—busted

“The title is under Mom/Dad, so it’s all theirs.” Not necessarily; title doesn’t override ACP/CPG rules or the deceased’s share.
“We can use an affidavit of self-adjudication.” Not if the deceased left children—that’s for a sole heir only.
“Minors can sign if their guardians agree informally.” Sales or compromises involving minors’ shares need court approval.
“No need to pay estate tax if we won’t transfer yet.” You still face penalties and practical barriers (no eCAR, no retitling/sale).

14) Bottom line

When a parent dies, children become co-owners of the deceased parent’s share—even if the paper title names only the surviving parent. Work out the true estate (after liquidating the marital property), apply the succession rules (intestate or legitimes), then transfer lawfully (taxes, eCAR, EJS/probate). Minors’ shares are court-protected, lifetime gifts may be collated, and improper transfers can be undone.

This is general information under Philippine law. Succession math and document strategy can turn on small facts (dates of marriage, prenups, prior donations, recognition of filiation, pending debts). For a live case, bring your papers to a Philippine lawyer for a tailored computation and a settlement plan.