Heir Exclusion via “Deed of Assignment” in the Philippines

A complete, plain-English explainer (estate & succession law, Philippine context)

Bottom line: You cannot lawfully “exclude” a compulsory heir from an estate by making the other heirs sign a Deed of Assignment among themselves. Philippine law protects legitimes (reserved shares) of compulsory heirs (legitimate/illegitimate children and descendants, surviving spouse, and ascendants in default of descendants). What you can do: (1) a testator may disinherit only for causes and through formalities strictly set by law (in a will); (2) an heir who is already entitled after death may assign, waive, or sell his/her own hereditary rights—but cannot sign away someone else’s legitime.

1) Key concepts you need to sort out first

Legitime (reserved share): The portion of the estate the law guarantees to compulsory heirs. Any act that impairs legitimes (e.g., deeds or donations) can be reduced or voided to the extent of impairment.
Compulsory heirs:
- Primary: legitimate/illegitimate children and descendants; surviving spouse.
- Substitute in default of descendants: legitimate parents/ascendants (with spouse).
Pactum successorium (agreement about a future inheritance): Void. You cannot validly assign, renounce, or dispose of a share before the decedent dies.
Assignment of hereditary rights (cession): Valid only after death, when succession has opened. An heir may transfer his/her undivided, ideal share (gratuitously or for value).
Disinheritance: The only way a testator may exclude a compulsory heir; must be done in a will and only for legal causes; strictly interpreted.
Preterition: Omission in a will of a compulsory heir in the direct line; it annuls the institution of heirs, subject to rules on devises/legacies.

2) What a Deed of Assignment can—and cannot—legally do

What it can do (after death)

An heir can assign his/her own hereditary rights (e.g., “I assign my 1/4 undivided share to my sister”).
The assignment may be onerous (sale) or gratuitous (donation/waiver).
The assignee steps into the shoes of the assigning heir, subject to debts, collation, partition, and tax rules.
It may be used within an Extrajudicial Settlement (EJS) to redistribute shares by consent of all heirs.

What it cannot do

It cannot “exclude” a compulsory heir by having other heirs assign among themselves as if the omitted heir did not exist. The omitted heir may later invalidate the settlement to the extent of his/her legitime (or more, depending on the defect).
It cannot cure an invalid disinheritance (e.g., no will, wrong cause, or defective formalities).
It cannot assign future hereditary rights (pre-death) or someone else’s share.

3) The only lawful route to “exclusion” by the decedent: Disinheritance in a will

Form: Must be in a valid will complying with formalities (notarized or holographic as allowed).
Substance: Must state a specific legal cause for the particular heir (e.g., serious offenses against the testator or family, as enumerated by the Civil Code).
Proof and challenge: The cause can be contested; if not proven, the disinheritance fails, and the heir recovers the legitime.
Reconciliation/condonation: May nullify the disinheritance.
Effect on shares: Disinheritance affects distribution, but legitimes of other compulsory heirs must still be respected.

Takeaway: Outside a valid, cause-based will, there is no lawful way for a decedent to “exclude” a compulsory heir.

4) Using Extrajudicial Settlement (EJS) and deeds without violating legitimes

When there is no will, no debts, and all heirs are of legal age (or duly represented), heirs may execute an EJS (Rule 74). Within that document, heirs often include deeds of assignment/waiver to reflect a negotiated split.

Guardrails:

All heirs must participate (or validly waive through an SPA).
Minors/ incompetents need a court-approved guardianship action; they cannot simply be “excluded.”
Publication and other Rule 74 requirements must be met; titles stay subject to a two-year lien for claims of omitted heirs/creditors.
A “waiver” in favor of specific co-heirs (not back to the estate) is typically treated as a donation for tax purposes.
An heir omitted from an EJS can annul or rescind the deed and demand his/her lawful share (and may go after properties in the hands of co-heirs or assignees, subject to protections of buyers in good faith).

5) Assignment of hereditary rights (after death): mechanics & effects

Object: Always an undivided, ideal share in the whole inheritance (unless partition already happened).
Form: Public instrument is best practice; if real property is involved, you’ll anyway need a notarized instrument for registration after BIR clearance and issuance of new titles post-estate taxes.
Who bears estate debts? The estate first, before distribution. Assignees take subject to estate obligations and collation/reduction of inofficious donations.
Assignee’s position: Becomes co-owner/co-heir pending partition; can participate in partition proceedings.
Creditors of the heir: If an heir renounces or assigns away rights to defraud creditors, creditors may attack the act (rescission/fraudulent conveyance remedies) or, in some cases recognized in civil law systems, accept the inheritance in the heir’s stead to the extent of their claims.
Taxes & charges (high level, not exhaustive):
- Estate tax is due before transfers to heirs/assignees; BIR CAR needed for property transfers.
- Assignment for value: may trigger capital gains/creditable withholding and documentary stamp tax.
- Gratuitous waiver in favor of named co-heirs: may trigger donor’s tax.
- General renunciation (not in favor of specific persons but back to the estate): typically not donor-taxable but confirm with current revenue rules.

6) Trying to “exclude” by inter vivos transfers while alive

Common tactic: the would-be decedent donates or sells properties to select children before death to “sideline” another child.

Limits & countermeasures:

Donations inter vivos are subject to reduction for inofficiousness if they impair legitimes at death.
Collation: Ordinary donations to children are brought to collation in computing legitimes (added back for computation), unless expressly and validly excluded from collation (which still cannot impair the legitime).
Simulated sales to favored heirs can be recharacterized as donations and reduced.
Result: A sidelined compulsory heir can still recover the legitime from donee-siblings or from assets subject to reduction.

7) Partition, preterition, and omitted heirs

Preterition (will cases): Leaving out a compulsory heir in the direct line annuls the institution of heirs (but specific legacies stand if there are sufficient free portions), leading to intestacy to that extent.
Omitted heir in EJS: May bring an action to annul the settlement and demand re-partition. Even a buyer from the co-heirs may be affected if the buyer was not in good faith or acquired within the 2-year Rule-74 window.

8) Minors, spouses, and specially protected heirs

Surviving spouse: Always a compulsory heir; cannot be pushed out by deed among children.
Minors/incompetents: Any waiver/assignment on their behalf requires court approval; otherwise voidable/void.
Illegitimate children: Also compulsory heirs; their shares may differ in proportion from legitimate children, but they cannot be excluded.
Ascendants: Become compulsory heirs only when there are no descendants; they too cannot be excluded once entitled.

9) Litigation risks when deeds are used to “exclude”

Annulment/Rescission of EJS for absence of an heir, fraud, mistake, or lesion (receiving less than one-fourth of rightful share in a partition).
Reduction of inofficious donations and collation suits against favored donees.
Actions to quiet title and reconveyance against transferees.
Creditor actions (fraudulent conveyance) if renunciation/assignment prejudices creditors.
Criminal exposure in extreme fraud (falsification in civil registry/affidavits), though most disputes stay civil.

10) Practical playbooks

If you’re planning distribution (testator stage)

Use a will if you need tailored distribution; don’t rely on “side agreements.”
If contemplating disinheritance, consult counsel: verify legal cause, gather proof, and observe will formalities.
If donating during life, map legitime math and collation to avoid later reduction suits.

If you’re an heir considering a Deed of Assignment (after death)

Confirm who the heirs are and each one’s legitime; list debts and estate taxes first.
Decide if your assignment is gratuitous (donation/waiver) or for value (sale)—this affects taxes.
Use a public instrument; if minors/spouse/illegitimate heirs exist, handle their rights properly.
Expect that an omitted heir can later unwind the deal; build in warranties and escrows when selling hereditary rights.

If you’re trying to exclude someone without a will (don’t)

You can’t. At best, you can negotiate a voluntary quitclaim from that heir—freely given, with full disclosure, and proper taxes—but you cannot sign a deed that deprives a compulsory heir who does not consent (or lacks capacity to consent).

11) Formalities & common contents of a Deed of Assignment of Hereditary Rights

Recitals: death of decedent; date/place; no. of heirs; status of debts; EJS/pending probate.
Subject: “all hereditary rights, title, and participation” of the assignor in the estate (describe known properties).
Nature: Gratuitous (waiver/donation) or onerous (price, terms).
Warranties: title limited to assignor’s share, free from secret liens; assignment subject to estate debts, collation, reduction, partition.
Taxes/fees: who shoulders estate tax, donor’s/capital gains, DST, transfer fees.
Delivery & possession: if specific assets are temporarily delivered pending partition, clarify it’s without prejudice to final lotting.
Dispute resolution & venue.

Registration practice: Real properties normally cannot be re-titled straight from decedent to assignee without first clearing estate tax and presenting CAR and EJS/Decree. Consult your LGU ROD/BIR frontlines on sequencing.

12) FAQs

Q: We want to “remove” a sibling who was abusive to our parent. Can we just sign a deed among siblings? A: No. Only disinheritance in a will—for legal causes and with strict formalities—can exclude a compulsory heir. Post-death deeds among siblings cannot extinguish that heir’s legitime without his/her consent (or a valid court judgment).

Q: Can my father make me sign a deed now (while he’s alive) waiving my share? A: That’s a void pactum successorium (assignment of a future inheritance). Any waiver before death is invalid.

Q: If I freely waive my share after death in favor of my sister, is that valid? A: Yes—as to your own share. Expect donor’s tax implications if gratuitous, and make sure all heirs still receive at least their legitimes.

Q: What if we “forgot” an illegitimate child in our EJS? A: That child may annul the EJS and recover his/her legitime (and more, depending on facts), even from transferees lacking good faith.

Q: Can creditors force me to accept the inheritance I renounced? A: If your renunciation defrauds creditors, they can attack it and, in some instances, pursue the inheritance in your stead up to the amount of their claims.

Q: Does an assignee get specific properties? A: Not by default. Before partition, the assignee gets your undivided share in the whole estate. Specific assets vest only after partition or a deed that clearly allots them.

13) One-page compliance checklist

Identify all compulsory heirs; compute legitimes and free portion.
Determine debts and estate taxes first; secure BIR CAR.
If no will and eligible, prepare EJS (Rule 74) with publication and 2-year lien.
Any assignment/waiver: limit to assignor’s own share; get proper consents and court approvals for minors.
Map taxes (estate, donor’s/CGT, DST, fees) and allocate who pays.
Register appropriately (ROD/Land, LTO, corporate shares, bank accounts via estate documents).
Avoid any deed that impairs legitimes or excludes a compulsory heir without a valid will or voluntary consent.

Disclaimer

This article provides a general overview of Philippine estate and succession rules relevant to heir exclusion and deeds of assignment. Exact outcomes depend on your facts, current tax issuances, civil code provisions, and local registry practices. For live matters—especially where disinheritance, minors, illegitimate children, or complex donations are involved—consult Philippine counsel and a tax practitioner.