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

Overview

When a person dies without a will and with no outstanding enforceable debts, the heirs may divide the estate through an Extrajudicial Settlement of Estate (EJS) instead of going to court. But what if one of the heirs has already died by the time the family prepares the EJS? Do you need the surviving spouse of that deceased heir to sign—especially if some heirs will waive their rights?

The short answer is: it depends on timing and on who actually succeeds to the share. The surviving spouse of the deceased heir must sign if—and only if—that spouse has a transmissible successional right to the original decedent’s estate.

This article explains the governing rules, typical scenarios, signatures required, documentary and tax steps, and sample language for waivers in the Philippine setting.

Governing Framework (Plain-English Guide)

Rule 74, Rules of Court. Allows heirs to settle an estate without court proceedings via a public instrument (deed of extrajudicial settlement or affidavit of self-adjudication), subject to publication and bond (for personal property), and without prejudice to creditors and other persons unduly deprived.
Civil Code (Succession).
- Art. 777: Successional rights are transmitted at the moment of death of the decedent.
- Arts. 970–981 (Representation). Representation lets descendants step into the place of an heir who predeceased or is incapacitated—primarily in the direct descending line. Spouses do not represent.
- Intestate succession rules (Arts. 960 et seq.): Who inherits in the absence of a will (children/descendants; surviving spouse; ascendants; collaterals), and how they co-inherit.
Family Code (Property Regimes). Property acquired by inheritance by a married heir is generally exclusive/separate property of that heir (not community/conjugal), unless converted or commingled; the fruits may be community/conjugal depending on the regime.

The Crucial Distinction: When Did the Heir Die?

Scenario A — The heir predeceased the original decedent

What happens: Because the heir died before the original decedent, that heir never acquired any share from the original decedent.
Who steps in: Children/descendants of the predeceased heir may represent and take that heir’s place in the original decedent’s estate.
Surviving spouse of the predeceased heir: Does not represent and has no direct share in the original decedent’s estate.
Signature needed from the spouse? No, not as heir to the original decedent. However, if any of the representing descendants are minors, their legal representatives must sign.

Practical effect: In the EJS for the original decedent, list the representing children/descendants as heirs. The surviving spouse of the predeceased heir need not sign unless acting as legal guardian for a minor child-representative.

Scenario B — The heir survived the original decedent but died later (before the family settled)

What happens: At the original decedent’s death, the heir acquired a transmissible hereditary share (even if not yet partitioned).
Upon that heir’s subsequent death: That unpartitioned share becomes part of that heir’s own estate, to be inherited by that heir’s successors (which include the surviving spouse under intestacy, plus children/descendants and, in some cases, ascendants/collaterals).
Signature needed from the spouse? Yes, because the spouse is a successor to the deceased heir’s transmitted share.

Practical effect: You will need two layers of succession reflected in the documents. Either (i) do two EJS instruments (one for the original decedent and one for the deceased heir’s estate), or (ii) do one consolidated instrument that clearly states the chain of transmission, with all successors of the deceased heir (including the surviving spouse) signing or waiving.

Scenario C — The heir is alive and waives

What happens: A living heir’s share from inheritance is generally exclusive property, so that heir may assign or waive it without spousal consent (it is not community/conjugal property).
Caveats:
- A gratuitous waiver/renunciation may be treated as a donation, potentially triggering donor’s tax and requiring formalities of donations.
- If rights have already been commingled or converted into community/conjugal property (rare in pure hereditary rights, more common after proceeds are realized and mixed), spousal participation could become relevant.

Do You Need the Surviving Spouse’s Signature on the Waiver/Quitclaim?

Use this quick guide:

Situation	Does the surviving spouse of the deceased heir need to sign?	Why
Heir predeceased the original decedent	No	Spouse is not a representative under the Civil Code; descendants represent.
Heir outlived the original decedent but died before settlement	Yes	The heir’s transmitted share passed to the deceased heir’s own estate; the surviving spouse is among the successors.
Heir is alive and waives	Spouse’s signature generally not needed	The inherited share is exclusive property of the heir; consent under Arts. 96/124 (ACP/CPG) generally applies to community/conjugal property, not exclusive property.

Tip: When in doubt, trace exact dates of death and identify who actually succeeded to the share at each step. The person who owns the share (or their legal representative) is the one who must sign or waive.

Document Architecture That Works

Gather baseline facts and papers
- Death certificates (original decedent; deceased heir, if any).
- Marriage certificates (to establish spousal status and property regime if needed).
- Birth certificates of children/descendants (for representation).
- Titles, tax declarations, bank docs, share certificates, vehicle OR/CR, etc.
- Proof that the original decedent left no will and no debts (or that debts have been settled/waived/paid).
Choose the right instrument(s)
- Deed of Extrajudicial Settlement of Estate (by all heirs) or Affidavit of Self-Adjudication (if there is only one heir).
- If an heir died after the original decedent, prepare:
  - EJS #1: For the original decedent—naming the deceased heir as having acquired a share; and
  - EJS #2: For the deceased heir’s estate—where the surviving spouse and other successors take and possibly waive their rights;
  - or a Consolidated EJS narrating both transmissions, signed by all current successors.
Waivers, assignments, and quitclaims
- Use a separate Deed of Waiver/Assignment of Hereditary Rights if some successors waive or assign in favor of others.
- Identify the specific property or hereditary share being waived/assigned.
- If consideration is paid, describe it (assignment/sale). If gratuity, consider donation formalities and taxes.
Formalities
- Notarization of the EJS and any waiver/assignment.
- Publication: Once a week for three consecutive weeks in a newspaper of general circulation (as required for EJS).
- Bond: Commonly required when personal property is involved, typically equal to the value of such personal property, to answer for claims of creditors or persons unduly deprived.
Taxes and clearances
- Estate tax for the original decedent; if a second death occurred, a second estate arises (with its own estate tax).
- Obtain BIR clearance/eCAR for real property transfers.
- Settle local transfer taxes and register deeds with the Register of Deeds (for real property) or the relevant registries (e.g., LTO for vehicles, corporate secretary/stock transfer book for shares).
Transfers & retitling
- After taxes and eCAR, proceed to cancellation/issuance of new titles in the names of the adjudicatees/assignees.
- Keep evidence of publication, bond, tax payments, and receipts for creditor notice purposes.

Common Pitfalls (and How to Avoid Them)

Wrong party signs the waiver. Always confirm who owns the transmissible right at the time of settlement. If an heir died after the original decedent, you’ll need the surviving spouse and other successors of that deceased heir.
Skipping publication or bond. Non-compliance can expose the settlement to collateral attacks and claims from creditors/omitted heirs.
Ignoring minors or incapacitated successors. If a successor is a minor, a judicial guardian (or the appropriate legal representative) must act, often with court approval for dispositions/waivers in the minor’s interest.
Assuming spousal consent is needed for everything. Inherited rights are generally exclusive property—spousal consent rules for community/conjugal property don’t apply, unless there’s been a conversion/commingling or what’s being waived is community property derived from the inheritance (e.g., fruits deposited into a community account).
Tax missteps. A gratuitous waiver can be treated as a donation (distinct from estate tax), with separate tax implications and formalities. Get competent tax advice for timing, valuation, and exemptions.

Signature Checklist (Who Must Sign)

Use this as a working list for your notary or drafter:

All living heirs of the original decedent, or their duly authorized attorneys-in-fact.
Representatives of any predeceased heirs (typically their children/descendants by representation).
If an heir survived the original decedent but died later:
- All successors to that deceased heir’s estate—including the surviving spouse—must sign either in a separate EJS for that heir or in a consolidated instrument.
Guardians or court-authorized representatives for minors/incapacitated successors.
Waiving parties in any Deed of Waiver/Assignment, plus acceptances by favored heirs if required.

Sample Clauses (Illustrative Only)

1) Representation when heir predeceased the decedent

“Juan Dela Cruz died intestate on 10 March 2024. His son, Pedro Dela Cruz, predeceased him on 15 January 2020. Pursuant to Articles 970–981 of the Civil Code, Pedro’s children—Ana and Luis Dela Cruz—represent him and succeed, in equal shares, to whatever portion would have pertained to Pedro.”

2) Chain transmission when heir survived but later died

“At Juan Dela Cruz’s death on 10 March 2024, his daughter Maria Dela Cruz acquired a transmissible hereditary share under Article 777 of the Civil Code. Maria died on 05 May 2024. Her hereditary share in Juan’s estate formed part of Maria’s estate, to which her heirs—her spouse, Jose Reyes, and children, Carla and Nico Reyes—now succeed. The undersigned heirs hereby adjudicate Maria’s transmitted share as follows…”

3) Waiver/Assignment of Hereditary Rights (exclusive property)

“I, [Name of Heir], of legal age, hereby waive/assign all my hereditary rights and participation in the estate of [Original Decedent] in favor of [Favored Heir(s)], for and in consideration of [₱___ / or ‘gratuitously’]. I declare that said hereditary rights constitute my exclusive property by reason of succession.”

(Add notarial acknowledgment and, if gratuitous, consider donation formalities.)

Practical Workflows

If a predeceased heir is involved: Draft the EJS naming the representing descendants. No signature from the predeceased heir’s surviving spouse is required as heir to the original decedent.
If an heir died after the original decedent: Do two estates (or one consolidated deed with a full narrative). Make sure the surviving spouse of the deceased heir signs because the spouse is a successor to that deceased heir’s transmitted share.
If a living heir is waiving: Prepare a Deed of Waiver/Assignment. Spousal consent is generally unnecessary (exclusive property), but consider donation rules if the waiver is gratuitous.

FAQs

Q: The predeceased heir left a surviving spouse and two children. Must the spouse sign the EJS for the original decedent? A: No. Only the children/descendants represent the predeceased heir. The spouse of the predeceased heir does not.

Q: The heir outlived the original decedent but died before we settled anything. Must the heir’s surviving spouse sign? A: Yes. The heir’s share already vested and passed to the heir’s own estate; the surviving spouse is a successor, so their signature (or waiver/assignment) is required.

Q: Is spousal consent needed when a living heir waives a hereditary share? A: Generally no, because inheritance is exclusive property. But a gratuitous waiver may be a donation, which has its own formalities and taxes.

Q: Do we still need publication if everyone agrees? A: Yes. Publication (once a week for three consecutive weeks) is a rule-imposed safeguard benefiting creditors and omitted heirs.

Q: What if there were debts? A: EJS presupposes no debts or that debts have been fully settled/assumed. If debts exist and aren’t settled, judicial administration is safer.

Bottom Line

The surviving spouse of a predeceased heir need not sign the EJS for the original decedent—descendants represent.
The surviving spouse of an heir who survived the original decedent but later died must sign (as a successor to the deceased heir’s transmitted share).
For living heirs waiving their shares, spousal consent is generally not required because the hereditary right is exclusive property—subject to donation rules if the waiver is gratuitous.

Because the stakes are high (title transfers, taxes, possible minors, competing heirs, and creditor risks), have a Philippine notary/lawyer review your specific facts, dates of death, family tree, and property list before you finalize and publish your EJS.