ESTATE DIVISION IN A SECOND MARRIAGE (Philippine Law, 2025)

This article is for information only. It summarizes the Philippine statutory rules and leading doctrines as of July 7 2025. It is not legal advice; complex estates always warrant professional counsel.

1. Why “second-marriage” succession is special

Two (or more) sets of compulsory heirs. Children from the first marriage, children (or a surviving spouse) from the second, and possibly illegitimate children or ascendants, all have fixed “legitimes” the decedent cannot impair.
Two property regimes need liquidation. Death (or annulment) of the first spouse ends the first regime; the second marriage starts a new regime. If the first community or partnership is not liquidated before the survivor remarries, Philippine law imposes sanctions (forfeitures) that directly affect succession.
Validity of the second marriage matters. A subsequent union can be:

Status of second union	Successional effect on “spouse”	Effect on children
Valid (Art. 1 FC)	Full rights of a surviving spouse	Legitimate
Void under Art. 35 FC (e.g., bigamy, psychological incapacity)	No spousal legitime; but may have Art. 147 cohabitation property rights	Children are illegitimate but entitled to their legitime
Voidable (e.g., lack of parental consent) but not annulled before death	Spousal legitime subsists (Art. 139 CC)	Legitimate
Annulled before death	No spousal legitime; property regime converted to separation (Art. 50–51 FC)	Children remain legitimate

2. Governing sources

Topic	Principal provisions
Property relations of spouses	Family Code (Arts. 74–148)
Intestate and legitimes	Civil Code (Arts. 960-1134) as amended
Estate taxes	National Internal Revenue Code, esp. Secs. 84-97 (as amended by TRAIN & CREATE)
Forfeiture for failure to liquidate before remarriage	Art. 103, Family Code
Illegitimate children’s shares	Arts. 887-895, 176 FC; latest jurisprudence (e.g., Fudotan v. Pulido, 2022)
Cohabitation property	Arts. 147-148 FC
Foreign spouses / property abroad	Private International Law (Arts. 15-17, 1039 CC) + Anti-dummy, etc.

3. Step-by-step analysis when the decedent was in a second marriage

3.1 Identify and liquidate property regimes

First marriage
- If the deceased was the surviving spouse:
  - Liquidation of Absolute Community of Property (ACP) or Conjugal Partnership of Gains (CPG) of the first marriage should already have been completed after the first spouse’s death or annulment.
  - If the survivor remarried without liquidation, Art. 103 FC forfeits his/her share of that community in favor of the first-marriage common children.
- If the deceased was one of the first-marriage children: Only his/her hereditary portion under that prior liquidation (if any) falls into his/her own estate.
Second marriage
- Default regime for unions 8 Aug 1988 onward is the ACP (Art. 75 FC), unless the spouses executed a valid pre-nuptial agreement choosing:
  - CPG (rare after 1988)
  - Complete separation of property
  - Property regime governed by foreign law (only if not contrary to public policy)
- Upon death, the surviving spouse first receives his/her ½ share of the community or partnership; the remaining ½ (plus any exclusive property of the decedent) constitutes the gross estate.

3.2 Determine the compulsory heirs and their legitimes

Scenario	Legitimes (Civil Code rules)
Legitimate children (any marriage) + surviving spouse	Estate is in equal shares among each child and the spouse (Art. 892 CC). Illegitimate children get ½ of a legitimate child’s share each (Art. 895).
No legitimate descendants; legitimate ascendants + spouse	Ascendants: 2/3; spouse: 1/3 (Art. 893).
Legitimate spouse + illegitimate children only	Spouse: ½; illegitimate children share the other ½, pro rata (Art. 895).
Spouse only (no other compulsory heirs)	Spouse: ½ legitime; the free portion is the other ½ (Art. 900).
Void second marriage	No spousal legitime; children are illegitimate and take legitime for illegitimate children.

Pending bills (as of 2025) seek to give illegitimate children equal legitime with legitimate children, but none has yet been enacted.

3.3 Apply testamentary dispositions and donations inter vivos

A Filipino may freely dispose only of the “free portion.” Any will or inter vivos donation that impairs the legitimes triggers reduction inofficiosa (Arts. 906-910 CC).
Advance legitime (“collation”): Property donated by the decedent to any compulsory heir during lifetime is generally brought into hotch-pot (collated) when inheritance is distributed (Art. 1061).
Pre-termission: Entire will is void if it omits compulsory heirs completely (Art. 854). Partial impairment is cured only by reduction.

3.4 Practical computation example (simplified)

Facts: Juan (widower from his first marriage) marries Maria. They acquire PHP 10 million under ACP. Juan also owns PHP 4 million exclusive property. He dies, survived by Maria, two legitimate children from the first marriage (A & B), and one legitimate child with Maria (C).

Liquidate ACP #2
- Maria’s ½ share of ACP = PHP 5 M (her own; not part of estate)
- Estate thus starts with: ½ ACP (PHP 5 M) + exclusive (PHP 4 M) = PHP 9 M
Legitimes (Art. 892)
- Heirs: Maria, A, B, C (4 legitime shares)
- Each share = PHP 9 M ÷ 4 = PHP 2.25 M
Free portion = 0 (all used up by legitime). If the will left Maria “everything,” reduction operates so A, B, C each still get PHP 2.25 M.

3.5 Estate tax, CPA audit and liens

Gross estate for BIR purposes includes exclusive property and the decedent’s share of the community/partnership, plus deemed donations (transfer-for-less-than-adequate-consideration, insurance proceeds if beneficiary is revocable, etc.).
Standard deductions (NIRC Sec. 86[E]) currently: PHP 5 M standard deduction, PHP 500 k medical, funeral expenses up to 200 k, plus family home up to PHP 10 M, etc.
Flat estate-tax rate remains 6 % on the net taxable estate.
Heirs are solidarily liable for unpaid estate taxes up to the value of property received (NIRC §94).
Transfer certificates of title will not be re-issued without either (a) BIR clearance or (b) Certificate of Availment of an applicable tax amnesty (2023 estate-tax amnesty is presently extended only until 14 June 2025).

4. Common traps in real second-marriage estates

Failure to liquidate prior regime before re-marriage. Triggers Article 103 forfeiture; also confuses what property belongs to which estate.
Bigamous second marriages. The “spouse” has no legitime, but may claim cohabitation wages & properties in good-faith unions (Art. 147) and may claim allowance as dependent of the decedent.
Mistaken belief that a will can “disinherit” children. Disinheritance is allowed only for very narrow grounds (Art. 919-921) and must follow strict form.
Overlooking illegitimate children. They remain compulsory heirs even if born outside both marriages; concealment exposes the executor to criminal liability (Art. 226 RPC, estafa, etc.).
Property abroad. Philippine law governs successional capacity of heirs, but lex rei sitae governs the manner of transferring title to foreign land or shares; coordination with foreign probate or ancillary proceedings is essential.
Family home registered in deceased’s name alone. Surviving spouse and minor children have constitutional right of abode; the home is part of the estate but enjoys exemption up to PHP 10 M and cannot be partitioned until youngest child reaches majority (FC Art. 162).

5. Planning techniques

Tool	Key points and cautions
Pre-nuptial agreement	Can keep pre-existing assets for each spouse, or adopt total separation to protect first-marriage children. Must be in public instrument and recorded before the wedding.
Conditional donation mortis causa or life insurance	Proceeds go directly to named beneficiaries and are outside the estate (unless the beneficiary is revocable). Beware of legitime impairment if funded from community property without spouse’s consent (Art. 96 FC).
Living trust or holding company	Can segregate family assets, allocate voting/non-voting shares, and schedule distributions. Trusts are recognized in PH if the trustee is licensed; subject to donor’s-tax or estate tax depending on revocability.
Disinheritance clauses	Draft with counsel; must state a statutory cause (e.g., attempt on life, abandonment).
Waiver of legitime (post-death)	Allowed only after opening of succession; waiver before that is void (Art. 1347 CC). Post-death waivers are subject to donor’s tax if not for consideration.
Independent administrator + covenant not to contest	Reduces conflict between half-siblings but cannot override legitime.

6. Effect of second-marriage nullity or annulment during settlement

If the second marriage is void (e.g., bigamy) and that fact is declared after the spouse’s death, the “spouse” who is actually an intruder loses spousal legitime ab initio. She or he may still claim:
- Co-ownership share under Art. 147 if in good faith, taken before distribution to true heirs;
- Support (Art. 195 FC) while estate is in settlement.
Children from the void marriage remain illegitimate compulsory heirs.
If the marriage is merely voidable and no decree of annulment was issued before the decedent’s death, the union is deemed valid for inheritance.

7. Procedural roadmap for executors and heirs

Secure death certificate and check existence of a will.
File notice of death with the BIR within 30 days (NIRC Sec. 90).
Settle property regimes (ACP/CPG) before distributing legitimes.
Publish extrajudicial settlement (if no will and no adverse heirs) and post bond, or file probate petition if there is a will / minors / contested shares.
Pay estate tax within one year (unless extension). Interest at 6 % p.a. applies after due date.
Distribute titles after BIR eCAR and court/judicial approval, observing legitime quotas.
Register transfers with ROD/LTFRB/LRA; update stockbooks for share transfers; close bank accounts upon BIR clearance.

8. Key jurisprudence to know (selection)

Case	G.R. No.	Ruling
Heirs of Malate v. Gamboa	235188 (2023)	Liquidation of first conjugal partnership must precede distribution in intestacy of surviving spouse.
Fudotan v. Pulido	235965 (2022)	Clarified ratio of legitime where legitimate and illegitimate children concur with surviving spouse.
Aquino v. Aquino	208912 (2021)	Legitimate children cannot be deprived of legitime by trust mechanism that retains absolute control in decedent.
Muller v. Muller	149615 (2008)	Absence of liquidation before remarriage triggers Art. 103 forfeiture.
Bagaoisan v. Bagaoisan	198280 (2014)	Children from first marriage are preferred over second spouse for share forfeited under Art. 103.

9. Summary checklist for heirs in a second-marriage estate

Verify validity of the second marriage.
Liquidate all prior property regimes first.
Identify all heirs (legitimate, illegitimate, ascendants).
Compute legitimes before applying the will.
Watch out for Art. 103 forfeiture if no prior liquidation.
Confirm estate-tax deadlines and BIR filings.
Obtain court approval or publish extrajudicial settlement.
Register transfers and close the estate only after tax clearance.

Closing thought

Philippine succession law is consciously heir-protective. In second marriage situations, the system balances the rights of a new family with those of children from the first. Careful observance of liquidation rules, legitimes, and tax compliance will spare the blended family years of litigation—allowing them instead to focus on preserving relationships and wealth.