Right of Representation and Related Rules in Philippine Succession Law

1) The core idea: when do inheritance rights “vest”?

Under Philippine law, succession opens at the moment of the decedent’s death, and the rights to the succession are transmitted from that moment (Civil Code, Art. 777). This single rule drives most outcomes:

If a person who is entitled to inherit is alive at the decedent’s death (even briefly), that person’s inheritance right already vests.
If that person later dies before the estate is settled or distributed, what happens is usually transmission (the vested right becomes part of the deceased heir’s own estate), not “representation.”

So the first question is always:

Did the heir die before the decedent, or after the decedent but before settlement?

Those two timelines lead to very different legal consequences.

2) Three different mechanisms people confuse

Philippine succession uses different “replacement” concepts, each with its own rules:

Right of Representation (derecho de representacion) A substitute heir (usually a descendant) inherits in place of a person who should have inherited but cannot because that person:
- predeceased the decedent,
- is incapacitated, or
- is disinherited (Civil Code, Art. 970, et seq.)
Right of Transmission (jus transmissionis) If an heir survives the decedent but dies before accepting/repudiating or before partition/distribution, the heir’s vested hereditary rights pass to the heir’s own heirs (anchored on Art. 777 and the general structure of succession). This is not “representation.” The successors inherit the deceased heir’s share as part of the deceased heir’s estate.
Substitution (in wills) The testator may name a substitute to inherit if the original instituted heir cannot or does not inherit. This is purely testamentary and depends on the will’s provisions (Civil Code rules on substitution).

A fourth concept also matters:

Accretion (in wills and some co-heir situations) If a share becomes vacant and no substitution applies, the vacant portion may accrue to co-heirs under specific conditions, or it may pass by intestacy depending on the situation.

PART I — RIGHT OF REPRESENTATION (Philippine context)

3) What “representation” really means

Representation is a legal fiction: the representative is “raised to the place” of the represented person and inherits the share the represented person would have received, had that person been able to inherit.

Key Civil Code principles (high level):

Art. 970: Representation takes place in the direct descending line and, in a limited way, in the collateral line.
Art. 971–977 (and related provisions): Define who can represent, when it applies, and how shares are computed.

4) When representation applies

Representation applies when:

The person being represented (A) would have inherited by law, but cannot inherit because A:
1. died before the decedent, or
2. is incapacitated to inherit, or
3. is disinherited and the law allows A’s descendants (or in limited collateral cases, certain relatives) to step in.

Important: Representation is not the same as “my parent died after lolo, so I get my parent’s share.” That is typically transmission, not representation.

5) Who can represent whom

A. Direct descending line (children, grandchildren, etc.)

Representation is strongest here.

Grandchildren can represent their deceased parent (a child of the decedent) and inherit the share that parent would have received.
It can extend further downward (great-grandchildren, etc.) if needed.

This is the classic scenario:

Lolo dies. One of Lolo’s children already died earlier, but that child left children (Lolo’s grandchildren). Those grandchildren represent their deceased parent and inherit that parent’s share.

B. Collateral line (brothers/sisters; nephews/nieces)

Representation is allowed only in favor of the children of the decedent’s brothers or sisters (i.e., nephews/nieces) in intestate succession.

So:

Nephews/nieces may represent a deceased sibling of the decedent and inherit what that sibling would have inherited.

C. Ascending line (parents, grandparents)

No representation in the ascending line. If a parent of the decedent is not alive, you do not “represent” that parent upward. The law distributes differently among remaining heirs.

6) Representation in testate vs. intestate settings

Representation is primarily an intestate (by operation of law) concept.

But in Philippine practice, even when there is a will, representation can still matter in at least two recurring ways:

If the will does not validly dispose of the entire estate (partial intestacy), the intestate rules (including representation) can govern the undisposed portion.
Legitime issues: compulsory heirs and legitimes can create situations where descendants step into a position for purposes of compulsory portions, especially where a compulsory heir who would have been entitled is not in a position to inherit.

Because wills interact with legitimes and possible partial intestacy, representation can “re-enter” the analysis even in estates with a will.

PART II — “NAMED HEIR” DIES BEFORE SETTLEMENT: WHICH RULE APPLIES?

7) Scenario mapping: predecease vs post-death of decedent

Scenario A — Heir dies before the decedent

If the named heir predeceased the decedent:

That heir never acquired any inheritance right from the decedent (no vesting at all, because the heir wasn’t alive at the opening of succession).
The outcome depends on:
- (i) Intestate succession rules (which may include representation), and/or
- (ii) Will provisions (substitution, accretion, or intestacy as fallback).

Typical outcomes:

If the heir is a child of the decedent and has descendants: representation (grandchildren step in).
If the heir is an instituted heir in a will: check for substitution; if none, consider accretion and/or intestacy.

Scenario B — Heir dies after the decedent but before settlement

If the heir survived the decedent but died before the estate is settled:

The heir’s inheritance right already vested at the decedent’s death (Art. 777).
The heir’s share becomes part of that heir’s own estate.
The persons who take are the heir’s own heirs (by will or by intestacy) through transmission.

This is not representation. Your right comes from inheriting your parent’s estate, which includes your parent’s vested share in Lolo’s estate.

PART III — TESTATE ESTATES: SUBSTITUTION, LAPSE, ACCRETION, AND INTESTACY

8) If the “named heir” is an instituted heir in a will

When a will names (institutes) an heir and that heir dies before the testator, the institution may fail unless the will provides otherwise.

The checklist is:

Is there a substitute named in the will?
- Simple substitution is common: “I name A as heir; if A cannot inherit, then B.”
- If substitution applies, the substitute takes.
If no substitution, does accretion apply? Accretion may happen when multiple heirs are instituted to the same portion and one share becomes vacant, subject to specific legal conditions.
If neither substitution nor accretion fully resolves it, does intestacy apply? The vacant share may pass to legal heirs under intestate succession, where representation can become relevant.

9) Partial intestacy is common

Even with a will, partial intestacy can occur when:

The will does not dispose of everything,
Some dispositions are void/ineffective,
Some institutions lapse, and no substitution/accretion applies.

When that happens, the undisposed portion is distributed by intestate rules, including representation where allowed.

PART IV — INTESTATE ESTATES: HOW REPRESENTATION CHANGES SHARES

10) How shares are computed under representation (per stirpes)

Representation generally results in per stirpes distribution:

Divide the estate by the number of “stems” (branches) at the level of the decedent’s children (or siblings, in the collateral case).
The descendants in a stem split that stem’s share among themselves.

Example (direct line): Decedent had 3 children: C1, C2, C3. C2 predeceased the decedent and left 2 children (G1, G2). Distribution:

C1 gets 1/3
C3 gets 1/3
G1 and G2 represent C2 and split C2’s 1/3 → each gets 1/6

11) Representation with disinheritance or incapacity

If a child is validly disinherited, that child does not inherit—but the child’s descendants may still inherit by representation (this prevents punishing innocent descendants for the parent’s disinheritance, subject to the Code’s structure).

If a person is incapacitated to inherit (for legal reasons), representation can likewise allow descendants (where allowed) to step in.

These situations are highly fact-sensitive because:

Disinheritance has strict legal requirements and must be for causes recognized by law and properly stated.
Incapacity rules depend on specific grounds (e.g., certain acts against the decedent).

PART V — THE “DIES BEFORE SETTLEMENT” PROBLEM IN PRACTICE: PROCEDURAL AND TAX CONSEQUENCES

12) Estate settlement is a process, not the moment rights arise

A lot of confusion comes from thinking “you inherit only after settlement.” Legally, inheritance rights arise at death; settlement merely identifies heirs, pays debts/taxes, and distributes.

So if an heir dies mid-process:

If the heir died after the decedent: include that heir’s successors-in-interest (his/her heirs or estate representative) in the ongoing settlement.
If the heir died before the decedent: analyze representation/substitution/intestacy.

13) Two estates may need to be settled

If Heir H survives Decedent D, then dies during settlement, there are often two estates:

Estate of D, which includes a share belonging to H, and
Estate of H, which includes H’s hereditary rights in D’s estate.

This affects:

Who must sign extrajudicial documents,
Whether an administrator/executor is needed,
Potentially estate taxes for both estates (timing and compliance depend on current tax rules and BIR requirements).

14) Extrajudicial settlement: “all heirs must participate”

In an extrajudicial settlement (where allowed), all heirs must generally be parties to the settlement deed.

If representation applies: the representatives (e.g., grandchildren) are heirs of the original decedent for that portion and must be included.
If transmission applies: the heirs of the deceased heir (or the deceased heir’s estate representative) must be included because they now own the deceased heir’s vested share.

Missing a necessary party is a common reason settlements get challenged later.

15) Judicial settlement and probate considerations

In judicial settlement (including probate of a will):

The court determines heirs and their shares.
If an heir dies during proceedings, the deceased heir is typically “substituted” procedurally by successors-in-interest (this is a procedural substitution, separate from testamentary substitution).
Questions may arise about whether the deceased heir accepted or repudiated inheritance; if unresolved, the right may pass to the deceased heir’s own heirs depending on the situation.

PART VI — HARD CASES THAT OFTEN MATTER

16) When it’s unclear who died first (commorientes / simultaneous deaths)

If two people die in circumstances where it cannot be determined who died first, presumptions in civil law may apply. This can eliminate transmission (because you cannot transmit what never vested) and can push the analysis toward representation or intestacy depending on the family tree.

17) Legitime constraints: you can’t “will away” compulsory shares

Even if the decedent “named” an heir in a will, the will must respect legitimes of compulsory heirs (e.g., legitimate children/descendants, legitimate parents/ascendants in some cases, surviving spouse, and recognized illegitimate children, depending on the family configuration).

So a “named heir” dying early may change:

Whether a compulsory heir’s legitime is impaired,
Whether partial intestacy arises,
How much of the free portion is affected.

18) Adoption, legitimacy, and the right to represent

Family status matters:

Adopted children generally enjoy rights similar to legitimate children for inheritance from adoptive parents.
Illegitimate children have inheritance rights from their parents but with different share rules than legitimate children under the Civil Code structure.

Whether and how representation applies is tied to the legally recognized relationship and the applicable share rules.

PART VII — A PRACTICAL DECISION TREE (quick guide)

Step 1: Identify the timeline

Heir died before decedent → go to Step 2 (representation/substitution/accretion/intestacy).
Heir died after decedent → usually transmission (share goes to heir’s heirs/estate).

Step 2: Identify what kind of succession governs

Will governs → check substitution; if none, check accretion; if still unresolved, intestacy fills gaps.
No will / intestate → apply intestate rules; representation may apply.

Step 3: Confirm whether representation is legally allowed

Direct descending line → generally yes.
Collateral line → only nephews/nieces representing siblings of the decedent.
Ascending line → no.

Step 4: Compute shares properly

Representation → usually per stirpes (by branch/stem).
Transmission → the deceased heir’s share is part of that heir’s estate; distribution depends on that heir’s own heirs/will.

PART VIII — Common misconceptions (and the correct rule)

“My dad was named in the will but died during settlement, so I represent him.” Not necessarily. If your dad survived the decedent, you typically inherit through your dad’s estate (transmission), not representation.
“Representation applies whenever a person dies before getting the property.” No. Representation applies when the person could not inherit at the opening of succession (or is disinherited/incapacitated), not merely because distribution was delayed.
“If the will names someone who predeceased, that person’s kids automatically get it.” Not automatically. First check the will for substitution; then accretion/intestacy rules; representation may apply depending on which regime ends up governing that portion.

PART IX — Practical drafting and dispute-prevention tips

For testators (people making a will)

Use clear substitution clauses (“If A cannot inherit, B shall inherit.”).
Anticipate predecease scenarios for key heirs.
Keep the will aligned with legitime rules to avoid partial invalidity and unintended intestacy.

For heirs settling an estate

Map the family tree and death dates carefully.
Distinguish representation vs transmission early; it determines who must be included and what documents are needed.
If a heir dies mid-settlement, expect that you may need to address two estates and documentation for both.

Closing note

Inheritance outcomes in the Philippines turn on (1) the timing of deaths, (2) whether there is a will, (3) legitime/compulsory heir rules, and (4) whether representation is legally available in that family line. If you want, share a simple family tree with dates (who died when, who are the survivors, and whether there’s a will), and I can illustrate exactly which of representation, transmission, substitution, accretion, or intestacy applies and how the shares typically compute under the Civil Code framework.