Estate Planning for Filipinos Residing Abroad with a Foreign Spouse and a Dual-Citizen Child

A Philippine-law perspective (updated to 24 June 2025)

Disclaimer: This article is for educational purposes only and does not create a lawyer–client relationship. Cross-border estate work almost always requires bespoke advice in both (or all) jurisdictions concerned.

1. The Legal “Starting Grid”

Question	Short answer under Philippine law
Whose law governs succession?	Movables → the decedent’s national law (Philippine Civil Code art. 16 ¶2). Immovables → the lex situs (law of the place where the property is situated).
Who are compulsory heirs?	Legitimate/acknowledged children (regardless of citizenship), legitimate spouse (regardless of citizenship), and, in default of descendants, legitimate parents/ascendants (Civil Code arts. 887–899).
Are foreigners allowed to own Philippine land?	They may inherit land intestate or by legitime, but cannot receive land by sale or donation inter vivos, and cannot add to that land later (1987 Constitution art. XII §7 & jurisprudence).
May a Filipino abroad use a foreign will?	Yes, if the will was executed in accordance with the law of (a) the place of execution, (b) the decedent’s national law, or (c) the law of domicile, and it is reprobated (allowed) by a Philippine court (Rule 77, Rules of Court).
Estate-tax rate (after TRAIN)	Flat 6 % of the net estate worldwide of the decedent who died on or after 1 Jan 2018, less the ₱5 M standard deduction, ₱10 M family-home deduction, and other itemised deductions (NIRC, as amended by RA 10963).
Estate-tax filing	Return due within one year of death; extensions possible (§90, NIRC).

2. Characterising the Family

The Overseas Filipino Nationality: Filipino (even if dual) → Philippine succession law will normally apply to all movables anywhere in the world. Domicile: May influence foreign probate and tax exposure but does not displace the nationality rule in a Philippine court.
Foreign Spouse Status: The surviving spouse is always a compulsory heir under Philippine law. Nationality is irrelevant to legitime. Property rights in PH: May inherit land by operation of law or legitime but is barred from acquiring additional land inter vivos.
Dual-Citizen Child Citizenship: Holds both Philippine and foreign nationality (e.g., by jus soli plus jus sanguinis). Effect: As a legitimate descendant, the child shares in the legitime and may own Philippine land without the constitutional 40 % foreign-equity ceiling because the child is also Filipino.

3. Property Regimes between the Spouses

| Regime | Default trigger | Principal features | |---|---| | Absolute Community of Property (ACP) | Marriage celebrated after 3 Aug 1988 without a prenuptial agreement (Family Code arts. 75–92). | All present and future property (except a few exclusions) forms a common mass; dissolution is by equal division, subject to debts. | | Conjugal Partnership of Gains (CPG) | Marriages before 3 Aug 1988, or when validly chosen in a prenup. | Capital property remains separate; profits/gains are shared. | | Complete Separation of Property | Must be stipulated in a notarised marital settlement executed before the wedding and registered. | Each spouse keeps full control; no common fund is formed, simplifying cross-border estate work. |

Foreign marriages. Where a Filipino marries abroad, the property regime is governed by the law agreed upon in a valid prenup; failing that, by the national law of the husband at the time of marriage (in mixed marriages) or by their common national law (Civil Code art. 80 [old numbering]; Family Code art. 131). Therefore, if no prenup is executed and the husband is Filipino, ACP will be the governing regime worldwide.

4. Succession Basics

Legitime Slices (if spouse + one legitimate child survive)

Heir	Legitime as fraction of net estate
Legitimate child (or collective share of all legitimate children)	1/2
Surviving spouse	1/2 of the share of one legitimate child (i.e., if one child, spouse and child split 50 % : 50 %).

Any free portion after the legitimes may be disposed of by will to anyone, including charities or distant relatives.

Mode of Succession
- Testamentary – by will; allows testator to: allocate the free portion, choose an executor, create trusts, designate guardians, choose which law governs movables (conflict-of-laws clauses may be honoured abroad even if not domestically).
- Intestate – default statutory shares; no ability to disinherit other compulsory heirs except on limited grounds (Civil Code art. 919).

Types of Wills Recognised in PH

Form	Key requirements
Notarial will (Civil Code arts. 804–808)	At least 2 credible witnesses; signed on every page; attested clause; notarised.
Holographic will	Entirely handwritten, dated, and signed by the testator; no witnesses required; may be executed abroad.
Foreign notarial will	Allowed if compliant with any of: (i) law of place of execution; (ii) national law of testator; (iii) law of domicile; must be reprobated before Philippine court for property in PH.

5. Cross-Border Complications and Strategies

Issue	Practical Tips
Double taxation of worldwide estate	Verify if the Philippines has an estate-tax treaty with the other jurisdiction (currently only with Spain and Germany for inheritance taxes; a few others for gift taxes). Where none exists, rely on foreign tax credits and strategic situs planning.
Forced-heirship override	Some common-law countries allow full testamentary freedom. Philippine forced-heirship rules will still apply to movable assets when probated in PH; consider inter vivos transfers, insurance, or trusts to manoeuvre.
Foreign family-home equivalent	Only one residential property in the Philippines (or abroad, if claimed) may be treated as “family home” for the ₱10 M deduction; designate clearly in the will.
Land ownership limits for foreign spouse	Avoid devising additional land to the foreign spouse beyond legitime. Give cash equivalents or condominium units (which foreigners may own up to 40 % of building).
Disinheritance or unequal shares	Permitted only within the free portion; attempting to impair legitime risks reduction or collation proceedings.
Multiple wills vs. single worldwide will
• Separate local wills (one per country) speed up probate and reduce translation issues. • A master international will may suit simple estates; ensure it contains a savings clause that it neither revokes nor is revoked by any later local will.
Trusts	Philippine law recognises express trusts (Civil Code art. 1440 et seq.). A foreign trust may hold overseas assets while designating Filipino compulsory heirs as beneficiaries, thus blending flexibility with legitime compliance.
Prenuptial agreements	Consider inserting (a) separation of property, and (b) choice-of-law clauses for future succession to avoid conflict rules triggered by art. 80/131.
Insurance & retirement plans	Proceeds pass outside the estate (Insurance Code §18). Naming the foreign spouse and the child as irrevocable beneficiaries is an estate-tax-efficient way to “top up” their shares.
Apostille & translation	Any foreign public document (wills, prenups, death certificates) needs Apostille or consular authentication plus a certified Filipino translation for probate filing.

6. Estate-Tax Computation Snapshot (TRAIN-era)

Gross Worldwide Estate
 – Standard deduction (₱5,000,000)
 – Family-home deduction (up to ₱10,000,000)
 – Claims against the estate
 – Medical expenses (up to ₱500,000 within 1 year prior to death)
 – Tax-related deductions (e.g., funeral expenses up to ₱200,000)
 – Vanishing deduction (for property received within 5 years prior to death)
 = Net TAXABLE estate
 × 6 % flat rate
 = Philippine estate-tax due

Foreign estate tax or inheritance tax paid abroad may be claimed as a foreign-tax credit (NIRC §86 (D)), subject to limitations.

7. Step-by-Step Action Plan

Inventory all assets worldwide, classifying each as movable/immovable and identifying its situs.
Confirm property regime (ACP, CPG, Separation) and isolate exclusive vs. community property.
Craft or update wills
- Standard package: Philippine notarial will + foreign-law will (or a single will with situs-specific clauses).
- Insert guardianship nominations for a minor dual-citizen child.
Create living documents
- Special Powers of Attorney for asset administration if the Filipino remains abroad.
- Advance health-care directive (for both PH and host state).
Consider trusts/insurance to deliver the “free portion” flexibly.
Model estate-tax exposure under TRAIN and—if applicable—foreign law; adjust asset placement and beneficiary designations.
Execute, notarise, apostille. Register prenups with the civil registry and wills (optionally) with the Clerk of Court for safekeeping.
Maintain a digital vault holding PDFs of key documents, title deeds, policy contracts, and an asset map for heirs.
Revisit every 3–5 years, or upon a life event (birth, death, divorce, major relocation, change in tax law).

8. Frequently Overlooked Pitfalls

Pitfall	Why it hurts
“Invisible” foreign retirement accounts	Philippine executor must still declare them; omission is tax fraud.
Out-of-date beneficiary forms	Marriage or birth of a child does not automatically update life-policy beneficiaries.
Unprobated foreign will	Philippine court cannot recognise it till reprobate; delays release of bank deposits and title transfers.
Giving land to a foreign spouse by donation	Void; may trigger reconveyance and donor’s-tax assessments.
No Philippine TIN for heir abroad	Bureau of Internal Revenue (BIR) will not issue eCAR (electronic Certificate Authorizing Registration) without heirs’ TINs, stalling property transfer.

9. Special Notes on Dual Citizenship (RA 9225 & RA 9189)

A child born abroad to a Filipino parent is a natural-born Filipino and need not perform any act to perfect citizenship but should secure a Report of Birth with the Philippine embassy.
If the Filipino parent previously lost citizenship (e.g., by naturalisation abroad) and later reacquired it under RA 9225, the reacquisition fully restores succession rights and ownership capacity in land.
The minor dual-citizen child may own Philippine land in fee simple even while physically residing abroad, but any sale requires approval of the Regional Trial Court if the child is still a minor (Rule 74 & jurisprudence).

10. Future-Proofing: 2025 Legislative & Policy Watchlist

Pending measure	Possible impact
Estate-Tax Amnesty Extension Bill	May reopen amnesty window beyond June 2025 for untaxed estates of decedents who died on or before 31 Dec 2021; watch for implementing rules.
Proposed National Land Use Act	Could tighten classifications affecting farmland inherited by heirs abroad.
Digital Asset Taxation Guidelines (draft BIR revenue regs.)	Clarify valuation and reporting of crypto and tokenised securities in estates.

Conclusion

Planning an estate that spans multiple jurisdictions and multiple citizenships is no longer a luxury reserved for ultra-high-net-worth families. For Filipinos who have built lives abroad, married non-Filipinos, and are raising dual-citizen children, it is the only credible way to:

Protect the legitime while retaining flexibility;
Minimise unnecessary tax friction in both countries;
Accelerate access to assets for the surviving spouse and child; and
Avoid constitutional and statutory land-ownership traps.

Begin with a clear inventory, document your intent in valid wills (or trusts), respect each country’s mandatory rules, and update the plan as your family’s footprint evolves. With diligent housekeeping and professional advice, a cross-border Filipino family can navigate the complexities and preserve wealth across generations.