Extrajudicial Settlement When an Heir Is Deceased: Must the Spouse Sign the Waiver? (Philippines)

Short answer: Usually, yes. If one of the heirs has already died, the surviving spouse of that deceased heir generally has to participate—either by signing the deed of extrajudicial settlement (EJS) or by executing a waiver/quitclaim—because the deceased heir’s share has already become part of his or her own estate. There are important nuances, though, on why, when, and how the spouse must sign. This article explains the complete picture under Philippine law.

1) Legal Basics You Need First

A. What is an EJS?

An Extrajudicial Settlement is a non-court settlement of the estate of a decedent who left no will and no debts, where all heirs are of age (or properly represented) and all agree on the division. It is formalized in a notarized public instrument and typically requires publication (once a week for three consecutive weeks) and registration with the Register of Deeds when real property is involved. Creditors retain remedies within a statutory period.

B. When an heir dies before, during, or after EJS talks

Under civil law, succession transmits at the moment of death. The instant an heir dies, everything that heir owns or is entitled to—including an unliquidated hereditary right in another person’s estate—falls into the deceased heir’s own estate. That heir’s estate will then pass to his or her heirs (which typically include the surviving spouse and descendants, among others), following the order and rules on legitimes.

Implication: If an original heir is already deceased, you cannot skip that heir’s line. You must instead deal with all of the deceased heir’s successors (which usually includes the surviving spouse) in place of the deceased heir.

2) Must the Deceased Heir’s Spouse Sign?

A. General rule

Yes—if the deceased heir would have taken a share, the surviving spouse usually needs to sign (or join via a separate instrument) because the deceased heir’s transmissible hereditary rights are now part of the deceased heir’s estate. The spouse is a compulsory heir to that estate and therefore has a stake in the portion that would have gone to the deceased heir.

B. Why the spouse’s signature matters

Title cleanliness: Without the spouse’s participation, the chain of transmission is incomplete, raising red flags for the Register of Deeds, potential buyers, or lenders.
Avoiding future claims: The spouse (and other successors of the deceased heir) could later attack the EJS or assert their share, undermining the settlement.

C. Important nuance: representation vs. own right

Children of the deceased heir may represent their parent in the first decedent’s succession through right of representation.
The surviving spouse does not “represent” in the same technical sense; rather, the spouse inherits in his or her own right from the estate of the deceased heir. Practical effect: The spouse still needs to participate because what’s being settled or waived includes the deceased heir’s estate, in which the spouse has a legitime.

3) Exceptions & Edge Cases

A. If the deceased heir left no transmissible share

If, under the law of succession, that heir would not have received anything (e.g., preterition fully cured by others, total disinheritance that is valid, or zero share due to complete exclusion by nearer heirs), then there’s nothing for the spouse to inherit or waive. This is uncommon and fact-specific.

B. If a judicial settlement for the deceased heir’s estate already happened

If a court has fully settled the estate of the deceased heir and assigned the hereditary rights from the first decedent to identified persons (possibly the spouse and children), then those adjudicatees (not necessarily the spouse alone) must sign for that portion.

C. Minors among the deceased heir’s successors

If the deceased heir’s children are minors, any renunciation or disposition of their rights typically requires court approval (through guardianship or a special authority). A parent’s signature alone as natural guardian is not enough to waive a minor’s hereditary rights.

4) Property Regime & “Do We Need the Spouse’s Consent?” (Two Different Questions)

It helps to separate two often-confused issues:

Spousal consent for alienation of property during marriage (Family Code rules on the absolute community or conjugal partnership).
Spouse’s participation as an heir of a deceased heir.

Inheritance received by a living spouse is generally exclusive property of that spouse (unless the donor/testator states otherwise). Thus, if the original heir is alive, the heir’s spouse need not sign the EJS or waiver just because they are married—the share is exclusive, and the owning spouse can act alone.

Different scenario: Once that original heir dies, the surviving spouse becomes a compulsory heir to that deceased heir’s exclusive properties (including the unliquidated hereditary share). That’s why, in our topic, the spouse must participate.

5) Waiver Types & Tax Touchpoints (Practical Planning)

When heirs choose to waive instead of taking, two flavors frequently appear:

Pure repudiation (general renunciation): An heir refuses the inheritance altogether without naming a specific person to benefit; the share accretes according to law.
Renunciation “in favor of” a specific co-heir: Often treated like a donation by the waiving heir to the favored co-heir(s), with possible donor’s tax implications.

Why this matters here: If the deceased heir’s successors (including the spouse) intend to waive their transmitted share, make sure the form of renunciation is correctly chosen and tax effects are analyzed. A “general” repudiation typically avoids donor’s tax, while a targeted renunciation in favor of specific persons can be treated as a donation.

Tip: Coordinate estate tax for the first decedent and, if applicable, the second (the deceased heir). The timing of deaths and transfers can result in two separate estates and two sets of compliance.

6) Compliance Checklist When a Co-Heir Has Died

Map both lines of succession.
- First decedent → list heirs.
- For any heir who is deceased, list that heir’s heirs (usually: spouse + descendants).
Confirm there are no debts of the first decedent (and address known claims), to stay within EJS ground rules.
Secure documents:
- Death certificates (first decedent and deceased heir).
- Marriage certificate of deceased heir and spouse.
- Birth certificates of successors (children).
- IDs, tax numbers (TIN), titles, tax declarations, latest real property tax receipts, etc.
Handle minors properly: Court approval for any waiver/disposition of a minor’s rights.
Draft the right instrument(s):
- EJS with Participation of Heirs of the Deceased Heir, or
- EJS + Separate Waiver(s) by the deceased heir’s successors (spouse included). Use clear recitals showing the transmission chain.
Publication: Arrange the statutory publication (once a week for three consecutive weeks) in a newspaper of general circulation.
Registration:
- Register the EJS (and waivers) with the Register of Deeds for real properties.
- Attend to BIR requirements (estate tax, clearance) before/with registration and transfer.
Tax posture:
- File estate tax returns for the pertinent estate(s) within applicable deadlines (consider TRAIN-era rules on rates, penalties/interest relief, and available amnesties, if any at the time of filing).
- Evaluate whether any donor’s tax is triggered by a targeted renunciation.
Two-year window for claims: Keep records. Creditors and omitted heirs may assert rights within the statutory period; protect good faith transferees and comply meticulously.

7) Practical Scenarios

Scenario 1: Deceased heir left spouse and children

Who signs? The surviving spouse and the children (or their legal guardians with court authority if minors).
They may participate in the EJS to receive their transmissible share, or execute waivers (with careful tax analysis).

Scenario 2: Deceased heir left spouse, no descendants, but parents still living

The spouse still inherits from the deceased heir (with the latter’s parents).
Spouse must sign; the parents (as co-heirs of the deceased heir) also need to participate or waive, as appropriate.

Scenario 3: Original heir alive; spouse insists on signing

Not required solely by reason of marriage if the share is the heir’s exclusive property. Some registries or counterparties ask for it as a comfort measure; legally it’s not needed for exclusive property, but check the property regime and any specific deed language.

8) Drafting Tips (for the Deed and/or Waiver)

State both deaths and dates clearly. Identify the first decedent and the deceased heir with full details.
Spell out the chain of transmission. E.g., “By operation of law at the death of X, Y became an heir; upon Y’s subsequent death on [date], Y’s transmissible hereditary rights devolved upon A (spouse) and B/C (children)...”
Identify the legal capacity of each signatory (e.g., “A, in her personal capacity as heir of Y” and, if applicable, “as legal guardian of minors B and C by virtue of [court authority]”).
Use the correct waiver form. “General renunciation” vs. “in favor of [name/s].”
Attach supporting documents and reference them in the deed.
Include warranties that there are no known debts/claims, with indemnity provisions among co-heirs.
Coordinate notarization, publication, and registration timelines with BIR processing.

9) Common Pitfalls

Skipping the deceased heir’s spouse (or other successors) and signing the EJS as if the deceased heir were still alive.
Letting a parent sign for a minor without court authority for a waiver/disposition.
Using a targeted waiver without tax planning, inadvertently triggering donor’s tax.
Vague recitals that fail to show how the spouse/children of the deceased heir acquired standing.
Assuming a living spouse must sign just because they’re married (not true for exclusive property held by the living heir).

10) FAQ

Q: If the deceased heir’s spouse refuses to sign, can we proceed? A: Not safely for that share. You may need a judicial settlement or a partition case to bind non-consenting successors.

Q: Can we publish first and fix signatures later? A: Publication does not cure missing consent of necessary parties. Secure full participation (or judicial authority) before registration and transfer.

Q: We only discovered the deceased heir after transferring titles. What now? A: Expect exposure to claims within the statutory window. Consider curative deeds, amicable partition with corrective instruments, or seek court relief if settlement fails.

Bottom line

When an heir has died, the spouse of that deceased heir is ordinarily indispensable because the deceased heir’s share has already become part of the deceased heir’s estate. To make an extrajudicial settlement legally durable and registrable, include all successors of the deceased heir—the spouse included—or obtain proper court authority where consent can’t be had.

This article is for general information only and does not constitute legal advice. For specific cases—including tax computations, minors’ participation, or registry-specific practices—consult your counsel or notarial practitioner.