Extrajudicial Settlement vs. Waiver of Rights for Sale of Conjugal Property (Philippines)

Short answer: If the registered owner of land/real property has died, you generally need an Extrajudicial Settlement (EJS) under Rule 74 of the Rules of Court (plus taxes, publication, title annotation) to validly pass ownership to the heirs before (or simultaneously with) any sale. A Waiver of Rights is not a substitute for estate settlement. Within a marriage, a spouse’s “waiver” of conjugal/community rights to allow a sale is usually unnecessary (and often void if it attempts to waive future shares); what the law requires is spousal written consent for the disposition (Family Code, Arts. 96 & 124)—or court approval if there is disagreement or incapacity.

1) First principles: What property regime are we in?

Under the Family Code (effective 3 August 1988), the default regime—absent a valid marriage settlement—is:

Absolute Community of Property (ACP): generally, property owned at marriage and acquired thereafter becomes community property (with enumerated exclusions).
Conjugal Partnership of Gains (CPG): spouses keep their exclusive properties; fruits and acquisitions during marriage are conjugal.
Separation of Property: only if agreed in valid marriage settlements or judicially decreed.

For ACP and CPG, disposition or encumbrance of property requires the written consent of the other spouse; otherwise the transaction is void (Family Code Art. 96 for ACP; Art. 124 for CPG). If spouses disagree, the court may authorize the disposition. The family home requires the consent of both spouses regardless of title.

Practical effect: For a sale during the marriage, the buyer must see the spousal consent clause in the Deed of Sale—not a “waiver of rights.”

2) When the owner has died: Why Extrajudicial Settlement matters

If the registered owner (or a co-owner spouse) has died, title does not automatically shift on the face of the Transfer Certificate of Title (TCT). To sell, the heirs must first settle the estate:

2.1 Extrajudicial Settlement (EJS) under Rule 74

Use when:

The decedent left no will;
The decedent left no debts (or all debts have been paid/arranged);
The heirs are all of legal age (or minors are duly represented by guardians/adopters with court approval for their share).

Core requirements:

EJS Deed (or Affidavit of Self-Adjudication if there is only one heir);
Publication once a week for Three (3) consecutive weeks in a newspaper of general circulation;
Estate tax clearance and documentary taxes;
Annotation of the EJS on the title at the Registry of Deeds;
Two-year lien: persons unduly deprived may sue within 2 years from EJS registration (Rule 74, Sec. 4).

Liquidation step (often missed): If the decedent was married, liquidate the ACP/CPG first (Family Code Arts. 102 [ACP] and 129 [CPG])—identify exclusive properties, list community assets and obligations, pay conjugal/community debts, set aside the surviving spouse’s one-half, then distribute the net hereditary estate to heirs.

2.2 Judicial settlement / probate

Required when there is a will, outstanding debts, contested heirship, disagreement, or minors without guardianship approvals. Courts can authorize sales to pay debts or preserve the estate.

Key takeaway: A Waiver of Rights executed by some heirs does not cure the absence of estate settlement steps. Buyers who accept “waivers” instead of proper settlement risk a void or unregistrable transfer and future claims.

3) “Waiver of Rights” explained—and its pitfalls

“Waiver of Rights” is a broad label used in practice for various purposes. Legally its validity depends on what right, who waives, and when:

3.1 Within an ongoing marriage (no death)

A spouse signing a “waiver of conjugal/community rights” to let the other spouse sell is not the correct instrument.
The law requires informed written consent to the specific sale. Attempting to waive future shares in the community/conjugal property during marriage is generally void (Art. 89 for ACP; Art. 107 for CPG prohibit waiver of future rights except as allowed by law).
Proper approach: Deed of Absolute Sale signed by the owner-spouse and the consenting spouse, or sale authorized by the court if one spouse unreasonably withholds consent.

3.2 Among heirs after death

An heir may waive (renounce) his/her hereditary share after the decedent’s death. That waiver may be:
- Pure renunciation in favor of the co-heirs collectively (no consideration), or
- Assignment/transfer of hereditary rights to a specific co-heir or a third party, typically for consideration (this is already a conveyance).
However, if the subject is specific titled land left by the decedent, the heirs should still execute an EJS/partition so the Registry of Deeds can trace the chain of title and the BIR can assess taxes correctly.

3.3 Foreign spouse / ineligible buyer concerns

An heir’s “waiver” in favor of a foreign national that results in land ownership can be void for violating constitutional land ownership restrictions. Structure transactions carefully (e.g., condominium units subject to 40% foreign cap, or hereditary rights not culminating in prohibited land ownership).

4) Selling conjugal/community property vs. selling estate property

Scenario	Right instrument	What makes it valid	Common mistakes
Sale during marriage of ACP/CPG property	Deed of Sale signed by owner-spouse and written spousal consent (ideally co-execution)	Family Code Arts. 96/124; consent must be specific to the transaction	Using a generic “waiver of conjugal rights” instead of consent; selling family home without both spouses’ consent
Sale by surviving spouse of property registered in deceased spouse’s name	EJS (liquidate community; adjudicate to heirs and surviving spouse) + Deed of Sale by all owners of record (or their attorneys-in-fact)	Rule 74; Family Code liquidation rules; BIR estate tax	Skipping liquidation; only the surviving spouse signs; using “waivers” to shortcut EJS
Sale by heirs of estate property	EJS/partition (or court order) then Deed of Sale by adjudicated owners	Proper estate settlement; taxes paid; minors/capacity issues addressed	Heirs sign “waivers” without publication/bond; no estate tax CAR; unregistrable title

5) Taxes, fees, and timelines (high-level)

Estate tax: Due on transfer from decedent to heirs; file within 1 year from death (extensions possible). Obtain CAR (Certificate Authorizing Registration) before title transfer to heirs.
Capital Gains Tax (CGT) / Creditable Withholding Tax (CWT): Due on sale of real property (CGT for individual sellers of capital assets; CWT for some corporate sellers).
Documentary Stamp Tax (DST): On both estate transfers and sales.
Transfer tax & registration fees: Pay at the LGU and Registry of Deeds.
Publication cost: For EJS (Rule 74) if applicable.

Order of operations: Estate tax CAR → annotate EJS/issue new titles to heirs (or directly to buyer if simultaneous) → sale taxes (CGT/DST) → transfer tax → registration.

6) Minors, incapacitated heirs, and absent spouses

Minors/legally incapacitated heirs: Need legal guardianship; sale/waiver affecting a minor’s share generally requires court approval to be binding.
Spouse abroad or unavailable: Use a Special Power of Attorney (SPA) specifically authorizing the sale/consent; if executed abroad, it must be apostilled (or consularized) and properly notarized.
Spousal disagreement: Court may authorize disposition upon proof of necessity/benefit to the family (Arts. 96/124, last paragraphs).

7) Family home

Even if a property is exclusively titled to one spouse, if it is the family home, both spouses must consent to sell or encumber it (Family Code, Arts. 152–162). A “waiver of rights” by the non-owner spouse is not a safe substitute for genuine, informed consent to the transaction.

8) Due-diligence checklist

If you are the seller/spouses:

Identify regime (ACP/CPG/Separation).
Confirm if the property is family home.
Prepare Deed of Sale with spousal consent (co-sign).
If one spouse is deceased: liquidate the community/conjugal partnership and do EJS (or judicial settlement).
Secure BIR CAR(s), pay taxes, and gather IDs, tax IDs, proof of civil status.

If you are the buyer:

Get a certified true copy of the TCT/Tax Dec, latest tax receipts, and check encumbrances.
If any registered owner is deceased: require EJS (with publication) or court order, estate CAR, and proper heirship documents.
If owners are married: require spousal co-execution/consent; if ACP/CPG is unclear, treat as if consent is required.
Watch for minors’ shares (ask for court approvals).
Avoid “waiver-only” chains—insist on clean settlement and registration path.

9) Common documents and sample clauses

Spousal consent (to be incorporated in the Deed of Sale):

“I, [Name of Spouse], Filipino, of legal age, married to [Owner-Spouse], do hereby give my free and informed written consent to the foregoing sale of the property covered by TCT No. ______ in favor of [Buyer], pursuant to Article 96/124 of the Family Code.”

Extrajudicial Settlement (key elements):

Parties (heirs and surviving spouse), marital regime, list of assets & debts, liquidation steps;
Adjudication of 1/2 share to surviving spouse (ACP/CPG), balance to heirs per intestacy;
Agreement on partition (who gets the property being sold);
Provision for publication;
Undertaking to answer for claims under Rule 74 (2-year lien).

Heir’s renunciation/assignment of hereditary rights:

Identify decedent, estate, and specific property;
State whether pure renunciation (gratuitous, in favor of co-heirs) or assignment for consideration;
Confirm that renunciation is post-death (not a prohibited waiver of future legitime);
If minors affected, attach court approvals.

10) What not to do

Do not rely on a spouse’s generic “waiver of conjugal rights” to replace the required spousal consent for a particular sale.
Do not sell estate property on the strength of “waivers” among heirs without proper EJS/probate, publication, and tax clearances.
Do not ignore liquidation of ACP/CPG when one spouse has died. Half the property belongs to the surviving spouse, not to the estate.

11) Quick scenarios

Husband sells conjugal lot without wife’s signature/consent. → Void disposition under Art. 96/124. Buyer bears risk; remedy is to obtain wife’s ratification or court authority (not guaranteed).
Widow sells land titled solely in deceased husband’s name without EJS. → Widow owns, at most, her 1/2 conjugal share (after liquidation). She cannot transfer the heirs’ half without their participation and proper estate settlement.
Only child executes Affidavit of Self-Adjudication and sells immediately. → Allowed if truly sole heir and no debts, with publication. Buyer must still process estate CAR then sale taxes.
Sibling-heir issues “waiver” in favor of buyer to speed up deal. → Risky. Correct path is assignment of hereditary rights and/or EJS + Deed of Sale, ensuring registrability and BIR compliance.

12) Bottom line

Use Extrajudicial Settlement (or judicial proceedings) to settle estates and establish who can sell.
Use spousal written consent (not a generic waiver) to validly dispose of conjugal/community property during the marriage.
“Waiver of rights” has legitimate uses, but it is not a cure-all and cannot replace statutory requirements on consent, liquidation, publication, and taxes.

This is a general guide for the Philippine private-law context. Complex situations (e.g., mixed assets, foreign elements, minors, disputes) require review of your papers and may need a Philippine lawyer’s advice and, at times, court approval.