Estate Planning for Same-Sex Couples in the Philippines: Will vs. Special Power of Attorney and Designating a Beneficiary

This is general information for the Philippine legal context (laws and jurisprudence current through mid-2024). It isn’t a substitute for advice from a Philippine lawyer who can review your facts and documents.

1) The legal backdrop (why planning matters more for LGBTQ+ partners)

No marriage/civil union recognition. As of mid-2024, the Philippines does not recognize same-sex marriage or civil unions. That single fact explains most of the estate-planning gaps that follow.
Intestate succession (no will) treats partners as legal strangers. If you die without a will, the Civil Code’s default heirs are your legitimate/illegitimate children and descendants, your legal spouse, your parents/ascendants, and then collateral relatives. A same-sex partner is not on that list. Without planning, your partner usually inherits nothing.
Compulsory heirs limit “freedom to give.” Even with a will, you cannot disinherit compulsory heirs except for narrow statutory causes, and they are entitled to their legitime (reserved share). Typical compulsory heirs:
- Legitimate children/descendants (plus grandchildren by representation)
- In their absence: legitimate parents/ascendants
- Surviving legal spouse
- Acknowledged illegitimate children (their legitime is a fraction of a legitimate child’s)
Property acquired while cohabiting. Property each partner buys with their own money remains separate. Property bought together is generally co-owned in the proportions proved (or presumed equal if proof is lacking). Co-ownership ends on death; the decedent’s share goes to their heirs (or as their will provides, within legitime limits), not automatically to the surviving partner.
If one partner is a foreign national.
- Foreigners generally cannot own land in the Philippines, but may own condo units (subject to the 40% foreign ownership ceiling in a project) and certain personal property. A foreigner may acquire land by hereditary succession (an exception under the Constitution), but this topic is technical—get counsel if land is involved.

2) Three tools, three different jobs

A. Will (testament)

What it’s for: Directs where your property goes at death, appoints an executor, can grant a usufruct (life use) over a home to your partner, name guardians for your minor child, and settle many “what-if”s.

Key forms & formalities

Notarial will: In writing in a language you know; signed by you and three (3) credible witnesses, all in each other’s presence; with a proper attestation clause; then you and the witnesses acknowledge it before a notary. Each page is typically signed/numbered.
Holographic will: Entirely handwritten, dated, and signed by you. No witnesses needed, but handwriting must be provable later.
Probate is mandatory. No matter how perfect the will looks, a court must admit it to probate after death before it controls the estate. Expect time and cost for probate.
Capacity: You must be at least 18 and of sound mind when you execute it.

What you can — and cannot — do with a will

You may leave your free portion (the part not reserved as legitime) to your partner outright, or as a legacy (cash, condo, vehicle), or create a usufruct so your partner can live in/use a property for life.
You cannot impair the legitime of compulsory heirs. If you try, the disposition is reduced.
You may appoint an executor and waive the executor’s bond (courts have discretion).
You can express wishes for remains, funeral, pets, and digital assets, though some of those are honored as instructions rather than binding legal rights.

Taxes & timelines (high level)

Estate tax is a flat 6% of the net estate. The law provides, among others, a ₱5,000,000 standard deduction and a family-home deduction up to ₱10,000,000 (if qualified). Estate tax returns are generally due within one (1) year from death (extensions possible).
Life insurance proceeds may be excluded from the gross estate if the beneficiary designation is irrevocable and the beneficiary is not the estate/executor/administrator. (If revocable, they’re usually included.)

Strengths for LGBTQ+ couples

Lets you carve out the free portion for your partner (often the only way they receive anything if you have compulsory heirs).
Enables usufruct on the home (e.g., “Partner may live there for life; bare ownership to my siblings/parents/children”).

Limitations

Must survive probate challenge, technical formalities, and legitime computation.
Does not help for events while you’re alive (e.g., hospital decisions, bank access).

B. Special Power of Attorney (SPA)

Not to be confused with a “special power of appointment” in trusts. In the Philippines, SPA means Special Power of Attorney (agency).

What it’s for: Authorizes your partner (as agent) to act for you while you’re alive: sign documents, manage banking, sell or mortgage property (only if the act is expressly stated), collect benefits, handle government transactions, and often make practical health-care decisions in hospitals.

Crucial limitations

Automatically ends at your death (and also on your incapacity in many cases, unless it’s a durable healthcare authorization accepted by the institution). It cannot transfer property after death or dictate succession.
Many institutions (banks, registries, hospitals) insist on very specific wording, notarization, IDs, and sometimes “freshness” (recent date). Expect to re-execute SPAs over time.
For sales/mortgages, the Civil Code requires special (express) authority—general wording is not enough.

Best practices

Use separate SPAs for: (1) real estate acts, (2) banking and investments, (3) government claims/benefits, (4) health-care and medical records (with data-privacy consent), and (5) litigation.
Notarize in the Philippines; if signed abroad, have it apostilled. Keep originals handy.
Pair a healthcare SPA/authorization with a written advance directive (your wishes for life-support/DNR), recognizing there’s no single codified “living will” statute—hospital policies vary.

Strengths for LGBTQ+ couples

Gives your partner day-to-day agency where institutions won’t otherwise recognize them as “next of kin”.
Avoids delays in transactions when you’re unavailable.

Limitations

Zero effect on who inherits. It is not an estate-planning substitute for a will or non-probate transfers.
Can be ignored if wording doesn’t match a counterparty’s compliance checklist.

C. Beneficiary designations (insurance, retirement, pre-need, some accounts)

What they are: Contractual directions telling a third party (insurer, plan, or sometimes a bank) who gets the money on death. These often pass outside probate.

Where they work best

Life insurance / VUL: You can name your partner as beneficiary. Watch out for two big issues:
1. Public-policy bars on donations (Civil Code Article 739): If the insured is married to someone else and the partner is an illicit paramour, a beneficiary designation can be void. (Courts treat insurance proceeds like a donation.) If both are unmarried to others, this public-policy bar typically doesn’t apply.
2. Community/conjugal funds: If premiums were paid with conjugal/community property, the legal spouse could contest part of the proceeds unless properly handled.
Company retirement plans / private pensions: Plans usually allow any person as beneficiary (follow the plan deed).
Government benefits (SSS/GSIS/Pag-IBIG): Statutes and rules prioritize legal spouses and dependent children as primary beneficiaries. A same-sex partner is generally not recognized as a primary beneficiary. You may still be able to list them as a contingent/secondary beneficiary, but payment priority is statutory.
Pre-need/memorial plans: Often allow free beneficiary choice; read the contract.
Bank & investment accounts: Philippine law does not uniformly recognize “POD/TOD” transfers like in some countries. Workarounds:
- Joint “and/or” accounts with survivorship: Some banks allow it. Courts tend to treat survivorship clauses as inter vivos donations requiring clear donative intent; they can still be challenged by compulsory heirs.
- ITF (“in trust for”) accounts: Often treated as agency arrangements rather than true trusts unless documentation is robust.

Tax notes

Life insurance: If the beneficiary is irrevocably designated and is not the estate/executor/administrator, proceeds are generally excluded from the gross estate; if revocable, they’re typically included. Check your policy’s revocability.
Gifts during life (e.g., funding a partner’s account) can trigger donor’s tax: a flat 6% on total gifts exceeding ₱250,000 per calendar year (TRAIN Law).

Strengths

Fast, private, and usually outside probate.
Can deliver meaningful support to a partner even if a will is contested.

Limitations

Plan-specific and law-limited (especially SSS/GSIS).
Vulnerable to public-policy challenges (e.g., insured is married to another person and designation benefits a paramour).
Must be kept current; outdated designations routinely defeat intent.

3) Putting them together: what each tool can (and can’t) do

Goal	Will	SPA	Beneficiary Designation
Provide assets to partner at death	✅ Yes (limited by legitimes)	❌ No	✅ Yes (contract allows), but plan/law limits apply
Avoid probate delays	❌ No (probate required)	❌ Not relevant	✅ Often yes (payout direct to beneficiary)
Control who manages the estate	✅ Name an executor	❌ Ends on death	❌ Not an estate tool
Ensure partner can act while you’re alive (banks, real estate, government)	❌	✅ Yes (if specific)	❌
Healthcare decisions/records while alive	❌	✅ Often yes (if hospital accepts)	❌
Protect partner’s right to live in the home	✅ Usufruct / legacy	❌	❌ (unless asset is an insurance-type contract)
Bypass compulsory-heir shares	❌	❌	❌ (and insurance may still be attacked if against policy or paid with conjugal funds)
Privacy	⚠️ Probate is public	✅ Private	✅ Private (plan file)

4) Common scenarios & practical strategies

Unmarried, no children, parents alive
- Will: Leave the free portion (which is large here) entirely to your partner; consider a life usufruct over the home for partner and bare ownership to your chosen relatives (or vice versa).
- Insurance: Name partner as irrevocable beneficiary for additional, probate-free support.
- SPA: Separate SPAs for banking/real estate/government/healthcare.
Unmarried, with children (acknowledged)
- Children are compulsory heirs.
- Will: Allocate the free portion to partner; consider specific legacies (e.g., vehicle, cash) and usufruct on the home.
- Insurance: Partner as beneficiary of a policy where premiums are paid from your separate funds to reduce contest risk.
- Co-ownership: If buying property with partner, put both names on the title, with stated shares.
You’re married to someone else; your partner is same-sex
- Extreme risk area.
- Insurance: Beneficiary designations to a partner can be voided as contrary to public policy if the relationship is illicit under Article 739.
- Will: Your legal spouse and your children are compulsory heirs with strong rights; your partner’s share is limited to any free portion that doesn’t amount to a prohibited donation. Get counsel early.
Foreign partner; home is land in the Philippines
- A foreign partner cannot be a co-owner of land by purchase. Consider:
  - Usufruct in favor of partner via will (partner can live in/use it for life; ownership remains with your heirs).
  - If your foreign partner might inherit land by hereditary succession, get case-specific advice before relying on it.
You want your partner to access cash immediately after death
- Insurance proceeds (if payable to partner) and non-probate plan benefits are fastest.
- Joint bank accounts with survivorship clauses can help but are litigated if compulsory heirs object.

5) Drafting pointers (to discuss with counsel)

For wills
- Decide who your compulsory heirs are and compute the legitime vs free portion before making gifts.
- Consider a life usufruct for your partner over the family home (clearly identify property and rights).
- Appoint a trusted executor; give powers for swift estate administration; state if bond is waived.
- Keep the will safe; tell the executor where it is.
- Holographic wills are simple to make but often harder to prove—handwriting proof is key.
For SPAs
- Use clear, specific verbs: “to sell parcel described as TCT No. ___,” “to open/close bank accounts,” “to access medical records,” “to consent/refuse treatment.”
- Notarize; if executed abroad, apostille.
- Renew periodically so counterparties won’t balk at “stale” documents.
For beneficiary designations
- Keep copies of filed forms and insurer/plan acknowledgments.
- Prefer irrevocable designations when exclusion from estate tax and contest-resistance matter, recognizing you’ll need the beneficiary’s consent to change later.
- Audit your forms annually and upon life events (new child, property change, breakup).

6) Taxes & lifetime gifting (quick guide)

Donor’s tax: Flat 6% on total gifts over ₱250,000/year by the donor. Gifts between partners are not automatically exempt simply because you cohabit.
Estate tax: Flat 6% of net estate, with ₱5,000,000 standard deduction and up to ₱10,000,000 family-home deduction (if qualified).
Documentary stamp tax: Applies to certain transfers/accounts.
Plan ahead: Stagger gifts across calendar years; document separate-property funds; keep receipts.

7) Checklist: a practical, Philippines-specific plan for same-sex couples

Inventory: Assets (titles, bank/investments, insurance, digital), liabilities, and family tree (who are your compulsory heirs).
Will:
- Choose notarial vs holographic.
- Allocate free portion to partner; consider usufruct; name executor/guardian.
Beneficiary audit:
- Life insurance/VUL → partner as irrevocable beneficiary (if prudent).
- Employer plans/pre-need → update forms.
- Government benefits → understand limitations; add partner as secondary if allowed.
SPAs package (notarized):
- Real estate; banking/investments; government transactions; health-care & medical records (with data-privacy consent).
Title clean-up & co-ownership:
- Put both names and shares on newly acquired property allowed by law (e.g., condos, vehicles).
Paper trail:
- Keep all originals (will, SPAs, policies, beneficiary forms) in one secure place.
Taxes:
- Plan gifts and premiums from separate rather than conjugal funds; keep documentation.
Review annually and on events (new child, death of heir, new property, major illness, migration).

8) Frequently asked questions

Q: Can an SPA let my partner claim my money after I die? A: No. An SPA dies with you. After death, only your executor/administrator (or joint accountholder, or plan beneficiary) can validly act.

Q: If I leave “everything to my partner” in a will, will that stick? A: Only up to your free portion. Compulsory heirs can reduce excessive dispositions.

Q: Is naming my partner as life-insurance beneficiary safe? A: Often yes—if both of you are unmarried to anyone else and premiums came from your separate funds. If you’re legally married to someone else, the designation risks being void as against public policy.

Q: Can we just make our bank account joint so my partner takes all? A: Survivorship clauses help but are sometimes treated as donations and can be challenged by compulsory heirs—document clear intent and consider using insurance for liquidity.

Q: We have a child we raise together, but only one of us is the legal/adoptive parent. Can the other name themselves “guardian” in a will? A: You can nominate a guardian in your will; courts decide the appointment guided by the child’s best interests. For parental rights, adoption (subject to Philippine rules) is the durable path.

9) Quick decision guide

You want partner protection at death (ownership/use) → Will (plus usufruct where helpful) + insurance beneficiary.
You need partner authority during life → SPAs (separate, specific, notarized).
You want quick cash to partner upon death → Insurance/plan beneficiary (consider irrevocable).
You’re buying assets together → Co-own on title (where lawful), document shares; complement with will/insurance.
You have compulsory heirs → Use will to maximize the free portion for your partner and structure a life usufruct on the home.

Final reminders

Will ≠ SPA ≠ beneficiary form. They are complements, not substitutes.
Keep documents current, properly executed, and findable.
Edge cases (marriage to someone else, foreign ownership, mixed assets abroad, government benefits) call for tailored legal advice.

If you’d like, tell me your rough family tree and asset profile (no account numbers), and I can sketch a sample allocation showing what the legitime vs free portion might look like and how to layer a will, SPAs, and beneficiary forms around it.