Inheritance Rights of Grandchildren When Their Parent Has Pre-Deceased the Grandparent (Philippine Law)
“Representation is a right created by fiction of law, which draws the representative to the place, degree and rights of the person represented.” — Civil Code, Art. 970
1. Why this topic matters
Many Filipino families discover, only after a grandparent dies, that a son or daughter who should have inherited has already passed away. Where do the grandchildren now stand? The answer affects who signs the settlement, how the estate is divided, what taxes are due, and even whether a will is valid.
2. Statutory pillars
| Source | Key provisions |
|---|---|
| Civil Code (Arts. 960-1101) | General rules on succession, legitimes, collation, reserves |
| Family Code (1988) | Definitions of legitimacy, legitimation, filiation, adoption |
| RA 9858 (2009) | Legitimation of children born to parents subsequently married |
| RA 9523, RA 8552 | Adoption and its effects on succession |
| National Internal Revenue Code (NIRC), as amended | Estate-tax obligations |
| Rules of Court, Rule 73-90 | Settlement of estates and guardianship of minors |
3. Core concepts you need first
Modes of Succession
- Testate (with a will)
- Intestate (no valid will)
- Mixed – part by will, remainder by law
Compulsory Heirs (Art. 888)
- Legitimate children and their descendants
- Surviving spouse
- Legitimate parents/ascendants (only if no legitimate children/descendants)
- Illegitimate children (subject to legitime differentials)
Legitime – the minimum share the law reserves for compulsory heirs, which a will cannot impair.
Right of Representation (Arts. 970-975)
- Operates only in the direct descending line (grandchildren, great-grandchildren, etc.) and in the collaterals for nephews/nieces.
- The representative steps into the place and degree of the pre-deceased parent.
- Per stirpes, not per capita: the share allotted to the parent is first determined, then subdivided equally among that parent’s children.
4. When do grandchildren inherit by representation?
| Scenario | Is representation allowed? | Why |
|---|---|---|
| Parent died before the grandparent | Yes | Art. 970 expressly allows representation in the descending line. |
| Parent waived, was disinherited, or is incapacitated to inherit | Yes | The law treats these as equivalent to pre-decease for purposes of representation (Art. 972). |
| Parent alive and capable | No | No representation if the nearer heir lives (Art. 962). |
| Parent survived but later repudiated the inheritance | No | Acceptance or repudiation is personal; representation does not revive (Art. 971). |
5. Testate succession: Grandchildren vs. the will
- The testator may distribute property only after respecting the legitime of compulsory heirs.
- Grandchildren represented by law are treated as compulsory heirs and must receive the legitime that would have gone to their parent.
- If the will omits them or reduces their legitime, they may file an accion de inoficiosa (action to reduce inofficious donations) or an action to annul or probate only partially.
Example 1 (w/ will).
- Grandparent leaves ₱6 million, two surviving children (A, B) and three grandchildren of pre-deceased child C (C1, C2, C3).
- Legitimate descendants’ legitime = ½ of estate = ₱3 M.
- Each root (A, B, C) first gets ₱1 M of legitime.
- Grandchildren share C’s ₱1 M per stirpes → ₱333 k each.
- The free portion (₱3 M) can be given in any manner, but if also given to the surviving descendants must respect the same stirpital method unless expressly unequal.
6. Intestate succession: No will, pure operation of law
Order of intestate heirs (Arts. 960-970 extract):
- Legitimate children and descendants, by right of representation
- Legitimate parents/ascendants
- Illegitimate children
- Surviving spouse (shares vary depending on concurrence)
- Collateral relatives up to the 5th degree
- The State
Example 2 (no will). Estate: ₱10 M; heirs: A (living child), B (living child), grandchildren C1, C2 (children of pre-deceased C).
- Step 1: Divide estate into 3 roots (branches) → ₱3 .33 M each.
- Step 2: A and B each get ₱3 .33 M.
- Step 3: C1 & C2 split C’s share → ₱1 .665 M each.
7. Legitimate vs. Illegitimate Grandchildren
| Relationship | Can inherit by representation from legitimate grandparent? | Basis |
|---|---|---|
| Legitimate GC via legitimate parent | Yes | Art. 970 |
| Illegitimate GC via illegitimate parent | Yes, but only if the grandparent is also illegitimate (same line). | |
| Illegitimate GC via legitimate parent | No intestate succession | Barrier Rule (Art. 992)—illegitimate relatives cannot succeed legitimate relatives except through the latter’s parents. A will can override. |
| Legitimate GC via illegitimate parent | No intestate succession | Same barrier. |
Supreme Court has repeatedly upheld the absolute barrier in Art. 992 (e.g., Diaz v. IAC, Dumanais-Isidoro v. Angeles). Legislative reform bills persist but none yet enacted.
Tip: If the grandchildren are barred intestate, the grandparent may still legitimize their share by executing a will or a donation mortis causa while alive.
8. Effect of adoption, legitimation & subsequent marriage
- Adopted children inherit from adoptive parents as legitimate children (RA 8552). Grandchildren of an adopted child likewise represent through the adopted line.
- Legitimated children (RA 9858) enjoy the same rights as legitimate children retroactively from birth, including their descendants.
- Children born after declaration of nullity of voidable marriages remain legitimate; those from void marriages are illegitimate unless legitimated or adopted.
9. Shares and the legitime table at a glance
| Concurrence | Legitimate descendants’ legitime | Surviving spouse legitime | Illegitimate share (if allowed) |
|---|---|---|---|
| Legitimate descendants only | ½ of estate | n/a | n/a |
| Legitimate descendants + spouse | ½ to descendants (per stirpes) | ¼ | n/a |
| Legitimate descendants + illegitimate children | ½ to legit. descendants | n/a | Each illegitimate = ½ of one legitimate share, taken from the other ½ (Art. 895) |
(N.B. When both spouse and illegitimate children concur, Art. 895 & 997 supply a more complex formula.)
10. Reservas troncal & collatio
- If a child dies ahead inheriting property from a grandparent and then passes that property to the surviving grandparent or siblings, it may be subject to reserva troncal (Art. 891).
- Collation obliges compulsory heirs who received donations inter vivos from the grandparent to bring those values into the mass; grandchildren who represent must collate what their parent would have, but only up to the amount received.
11. Settling the estate when heirs include minors/grandchildren
Extrajudicial settlement (EJS) allowed if:
- No will, no debts (or all paid)
- All heirs (including those representing) are of legal age or represented by a judicially-appointed guardian.
Judicial settlement / probate otherwise.
Guardian ad litem mandatory for minor grandchildren in court proceedings.
BIR estate-tax filing within one (1) year from death; minors’ shares handled by guardian.
Real-property titles transferred via Deed of Adjudication with Settlement or Court Order + new TCTs/CCTs.
12. Enforcement, prescription & common pitfalls
| Issue | Period | Note |
|---|---|---|
| Filing action to annul or reduce an inofficious will | 5 yrs from probate | Art. 1391 |
| Impugnation of filiation (legitimacy/illegitimacy) | Within 1 yr for presumed parent; otherwise, imprescriptible if status never adjudged | |
| Action to partition estate | Imprescriptible while co-ownership subsists; possession may ripen into prescription after 30 yrs if adverse |
Common errors: ignoring illegitimate descendants, computing per capita instead of per stirpes, rushing into an EJS without appointing a guardian for minors, or failing to collate lifetime gifts.
13. Practical checklist for surviving heirs
- Map the family tree – identify every branch; list living and deceased members.
- Secure civil registry documents – PSA birth, marriage, death certificates prove filiation and dates.
- Locate or confirm the will (if any).
- Inventory the estate – properties, bank accounts, insurance, digital assets.
- Compute provisional legitimes (use stirpes).
- Decide on EJS or judicial settlement.
- File estate-tax return; pay or secure eCAR before title transfer.
- Guardianship petitions for minors if necessary.
- Draft partition agreement or accept court-approved project of partition.
- Transfer titles & update records (Registry of Deeds, LRA, BIR, LGU tax maps).
14. Take-aways
- Grandchildren of a pre-deceased child are compulsory heirs—their right springs automatically by fiction of representation, not by the grandparents’ grace.
- Shares are always computed per stirpes, preserving the branch concept.
- Legitimacy matters: Article 992 still blocks intestate succession between legitimate grandparents and illegitimate grandchildren.
- Adoption and legitimation place the descendants on equal footing with legitimate blood relatives.
- Minors’ shares, estate-tax deadlines, and proper guardianship are procedural traps for the unwary.
Disclaimer: This article is for general information only and not a substitute for individualized legal advice. Succession often involves nuanced facts—consult a Philippine lawyer, estate planner, or accountant before acting.
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