Inheritance Rights and Preterition in Philippine Succession Law

(A comprehensive doctrinal and jurisprudential survey)

I. Statutory Framework of Succession in the Philippines

Civil Code of the Philippines (Republic Act No. 386, Book III, Title IV) – the primary source governing testamentary, intestate and mixed succession.
Family Code (Executive Order 209, as amended) – refines the status and legitime of the surviving spouse and legitimate/illegitimate children.
Special statutes – e.g., RA 9523 (simplified adoption), RA 9858 (legitimation), and property relations laws that indirectly affect successional rights.
Rules of Court – procedural rules on probate, estate settlement and escheats (Rules 73–90).

II. Compulsory Heirs and Legitimes

Class of Compulsory Heir	Basis	Statutory Legitime*	Notes
Legitimate children & descendants	Art. 887(1) CC	½ of estate, divided equally	Includes adoptees (RA 8552).
Legitimate parents & ascendants	Art. 887(2) CC	½ if no legitimate descendants	Parents excluded by legitimate children.
Surviving spouse	Art. 887(3) CC, Art. 892 CC	Shares in legitime of descendants/ascendants; if alone, ½	Family Code Art. 96/124 affects administration.
Acknowledged natural & other illegitimate children	Arts. 887(4), 895 CC; Art. 176 FC	½ share of each legitimate child (1:2 ratio)	“Equalist” rule since FC: all illegitimates treated alike.
Surviving spouse concurring with illegit. children only	Art. 895 CC	Same share as one illegitimate child
*Reserved property (reservas) & widow’s usufruct	Arts. 968–980 CC	Statutory encumbrances on inherited property

*After debts, charges and funeral expenses; subject to collation and reduction.

III. Preterition Defined

Preterition (Spanish preterición; “omission”) is the total omission of one, some, or all compulsory heirs in the direct line (ascendants or descendants) from the testator’s will, either in the institution of heirs or in the distribution of the legitime.

Source provision: Article 854, Civil Code

“The preterition or omission of one, some or all of the compulsory heirs in the direct line shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.”

Elements

Valid will – preterition is a vice of a will, not of intestacy.
Total omission – the heir receives nothing (not even as devisee, legatee or usufructuary).
Compulsory heir in direct line – legitimate/illegitimate children or descendants, or legitimate parents/ascendants if no descendants. The surviving spouse is not in the direct line, hence not protected by Art. 854.
No prior valid disinheritance – because disinheritance, if lawful, is intentional and produces different effects (Arts. 915–921).
No repudiation/renunciation – omission must originate from the testator, not from the heir’s waiver.

IV. Effects of Preterition

Situation	Effect on Will	Share of Preterited Heir	Share of Instituted Heirs	Devises & Legacies
Total preterition, heirs only	Institution of heirs annulled in toto	Succession opens by intestacy with respect to legitimes and free portion	If also intestate successors, take pro-rata intestate shares; if strangers, they are excluded	Stands valid unless inofficious (encroaches legitime)
Partial preterition (heir given less than legitime)	Institution not annulled; action for reduction	Entitled only to deficiency	Instituted heirs keep instituted shares subject to reduction	Same
Preterition plus disinheritance vitiated (invalid disinheritance)	Equivalent to preterition	Same as total omission	Same	Same
Preterition of heir who later dies before testator	Preterition ceases; will stands	Representation applies only if heir predeceased without renouncing legitime while living	—	—

V. Relationship With Other Successional Doctrines

Versus Disinheritance (Arts. 915–921) Preterition is innocent omission; disinheritance is intentional and must be for a legal cause with express mention in the will. Invalid disinheritance reverts to preterition.
Versus Inofficious Donations (Arts. 771, 902) Preterition applies to wills; inofficiousness covers donations inter vivos or testamentary dispositions exceeding the disposable free portion.
Versus Accretion (Art. 1015) Accretion enlarges shares of coheirs when one predeceases or renounces. Preterition annuls the entire institution of heirs in favor of intestate rules—accretion does not cure it.
Overlap With Mixed Succession Preterition oftentimes produces partial intestacy: the will survives but intestate rules fill the vacuum for compulsory heirs.

VI. Remedies of the Preterited Heir

Extra-judicial Settlement or Probate Opposition – assert omission during probate; court may declare intestacy or order reduction.
Action for Annulment/Reduction – imprescriptible while estate unsettled; quasi-contractual ten-year prescriptive period counted only from final distribution (jurisprudential trend).
Annotation of Lis Pendens – to protect legitime against conveyances by instituted heirs.
Partition and Collation Proceedings – ensure legitime computation includes donations and advances.

VII. Doctrinal and Jurisprudential Development

Case	G.R. No. / Date	Doctrinal Holding
Bermudez v. Gonzales	L-13593, May 13 1960	Omission of legitimate child annulled institution; devises to strangers upheld if within free portion.
Matabuena v. Cervantes	L-47232, Jul 31 1971	Distinguishes preterition from inofficiousness; legitime reduction distinct remedy.
De la Merced v. De la Merced	G.R. 148354, Aug 24 2007	Illegitimate child counts for preterition; doctrine of representation applies for descendant of predeceased compulsory heir.
Reyes v. PNB	L-22979, Jan 13 1968	Action to recover legitime does not prescribe until partition; strengthens imprescriptibility view.
Heirs of Don Ramon Duruntilla	G.R. 194075, Apr 20 2015	Preterition nullifies institution ab initio; devisee-legatees protected absent inofficiousness.
Azaola v. Raymundo (CA en banc)	40 O.G. (1942)	Classical exposition pre-Civil Code; still persuasive.

Recent cases (e.g., Dumayas v. Lindo, 2021) have reiterated that even illegitimate descendants omitted from wills executed before the Family Code (1988) may invoke Art. 854, applying the principle of retroactivity in matters of legitime where succession opens after the new law’s effectivity.

VIII. Computational Mechanics: Restoring the Legitime

Inventory — list all estate assets at net value (Art. 906).
Collation — add donations subject to collation (Art. 1071).
Determine legitime matrix — identify compulsory heirs alive at decedent’s death.
Allocate legitimes — restore omitted heir first; adjust shares of others proportionately.
Reduce devises/legacies — only if aggregate testamentary dispositions exceed free portion after legitimes; preference: (a) personal legacies abate before real property, (b) proportional abatement if silent.

IX. Special Topics

A. Preterition of Adopted Children

Since RA 8552 (1998), an adopted child succeeds as a legitimate child; omission now constitutes preterition.

B. Preterition in Holographic Wills

Doctrine treats no differently; but courts are lenient in construing inadvertence because holographic wills usually lack formal attestation clauses.

C. Omission Due to Unawareness of Heir’s Existence

The motive is irrelevant; even good-faith ignorance is cured only through intestacy or legitime reduction.

D. Subsequent Recognition of Illegitimate Child

If recognition occurs after the testator’s death, the child may still claim legitime, provided filiation is proved under Arts. 172–175 of the Family Code.

E. Interaction With Reserved Property (Reservas Troncal)

A preterited ascendant who is also a potential reservatario may inherit both by intestacy and by operation of reservas, subject to Art. 975.

X. Procedural Landscape

Venue – probate court of decedent’s residence (Rule 73§1).
Standing – compulsory heirs are interested parties; may file opposition or heirship petition.
Burden of Proof – claimant must show total omission and status as compulsory heir; once shown, institution of heirs presumed void pro rata.
Partial Distribution Pending Litigation – allowed under Rule 90 §2 but subject to posting of bond safeguarding omitted heir’s legitime.

XI. Comparative Notes

Jurisdiction	Parallel Concept	Key Differences
Spain	Preterición (Arts. 814-817 CC)	Spanish law distinguishes intentional vs. unintentional omission (“preterición intencional vs. no intencional”) with varying remedies; Philippine law does not.
Louisiana (U.S.)	Forced heirship	Similar legitime-like institution, but forced heirs limited to certain descendants under 24 yrs or disabled; omission triggers action to reduce excessive donations.
Quebec (Canada)	No forced heirship	Testator’s freedom broader; no preterition analogue.
Japan	Iryūbun (reserved share)	Omitted heirs seek in-court claim to reserved share within 1 yr of knowledge; does not annul will.

XII. Practical Drafting Tips for Philippine Wills

Always list all compulsory heirs and give each at least the legitime—state amounts as fractional shares to accommodate value fluctuations.
Include “anti-preterition” clause—e.g., “Should any compulsory heir be unintentionally omitted, it is my will that the omission be deemed a deficit of legitime only, subject to reduction, without invalidating this will.” Jurisprudence respects such intent (see Matabuena obiter).
Attach family tree and schedule of advances to guide executors in collation.
Contingent bequests—provide substitutes for predeceased compulsory heirs to avoid lapses and unintended preterition.
Periodic review—update after births, adoptions, legitimation, or deaths.

XIII. Conclusion

Preterition operates as a powerful statutory safeguard for filial solidarity in Philippine law. By annulling institutions of heirs that wipe out the legitime of compulsory heirs in the direct line, Article 854 ensures that testamentary freedom yields to family protection. Practitioners must be vigilant in (a) identifying every potential compulsory heir; (b) computing legitimes accurately; and (c) choosing the proper remedy—annulment or reduction—based on whether the omission is total or partial. The Supreme Court’s steady stream of decisions—most recently Heirs of Duruntilla (2015) and Dumayas v. Lindo (2021)—confirms that preterition remains a live, evolving doctrine attuned to modern family structures, including adoption and illegitimacy reforms.

This article is for legal education only and is not a substitute for tailored professional advice.