The death of a spouse dissolves the marital property regime and triggers the need for estate settlement before any real property—whether conjugal, community, or separate—can be validly sold. Philippine law requires clear title transfer to protect buyers, heirs, and creditors. Failure to follow the prescribed process renders the sale of the deceased spouse’s share void or voidable, exposing parties to litigation, clouded titles, and tax liabilities. This article details every legal aspect under the Family Code of the Philippines, the Civil Code, the Rules of Court, Presidential Decree No. 1529 (Property Registration Decree), Republic Act No. 10963 (TRAIN Law), and relevant jurisprudence.

I. Legal Framework and Nature of Property Ownership

Marriages contracted on or after 3 August 1988 are governed by the Absolute Community of Property (ACP) regime (Family Code, Art. 75 and 91). All properties acquired during the marriage belong to the community except those excluded by law (e.g., inherited property, property acquired before marriage). Marriages before that date fall under the Conjugal Partnership of Gains (CPG) under the Civil Code unless otherwise stipulated.

Death dissolves the regime (Family Code, Art. 126 for ACP; Art. 126 for CPG by analogy). The surviving spouse automatically owns one-half of the conjugal or community property. The deceased spouse’s one-half share forms part of the estate subject to succession. The surviving spouse is also a compulsory heir.

Separate property of the deceased (acquired before marriage, by gratuitous title, or excluded) passes entirely to the estate. Property titled solely in the deceased’s name but acquired during marriage is presumed conjugal or community unless proven otherwise.

II. Intestate Succession Shares of the Surviving Spouse

In the absence of a will, distribution of the deceased’s net estate follows these rules (Civil Code):

With legitimate children or descendants: The surviving spouse receives the same share as each child (Art. 996). Example: surviving spouse + three children = estate divided into four equal parts.
With legitimate children and illegitimate children: Legitimate children receive twice the share of illegitimate children; surviving spouse still receives the same as one legitimate child.
Without descendants but with ascendants (parents): Surviving spouse receives one-half; ascendants receive the other half (Art. 997).
Without descendants or ascendants but with illegitimate children: Surviving spouse receives one-half; illegitimate children receive the other half.
Without any compulsory heirs: Surviving spouse inherits the entire estate (Art. 994).
With brothers/sisters or their children (collaterals) but no compulsory heirs: Surviving spouse receives one-half; collaterals receive the other half.

Legitimes must be respected even in partial testate succession.

III. Preliminary Requirements Common to All Modes

Before any settlement or sale:

Secure a certified true copy of the Death Certificate from the Philippine Statistics Authority (PSA).
Obtain the Marriage Certificate.
Secure Birth Certificates of all heirs.
Gather the Owner’s Duplicate Copy of the Torrens Title (OCT/TCT/Transfer Certificate of Title), latest Tax Declaration, and Real Property Tax Clearance.
Inventory all assets and liabilities of the estate.

IV. Modes of Estate Settlement

A. Extrajudicial Settlement of Estate (Most Common and Expeditious)

Allowed under Rule 74, Section 1 of the Rules of Court when ALL of the following concur:

Decedent died intestate.
All heirs are of legal age and legally capacitated (or their guardians sign).
No outstanding debts or the debts have been paid.
Heirs unanimously agree on the partition.

Procedure:

Heirs (including surviving spouse) execute a notarized Deed of Extrajudicial Settlement of Estate (and Adjudication where applicable). The deed must:
- Describe all properties (real and personal).
- State the surviving spouse’s conjugal/community share.
- Detail the partition of the deceased’s estate share according to intestate rules or agreement (provided legitimes are not impaired).
- Contain an undertaking to pay any debts that may later appear within two years.
Publish the deed in a newspaper of general circulation once a week for three consecutive weeks.
File the estate tax return (BIR Form 1801) within one year from death (extendible for another year upon approval). Estate tax is a flat 6% on the net estate. Deductions for resident citizens include:
- Standard deduction: ₱5,000,000
- Family home deduction: up to ₱10,000,000 (if the property qualifies and is the actual family home)
- Claims against the estate, unpaid mortgages, etc.
- Vanishing deduction for previously taxed property.
After payment or determination of zero tax, the Bureau of Internal Revenue (BIR) issues a Certificate Authorizing Registration (CAR) or Tax Clearance.
Pay documentary stamp tax on the deed (₱15 per ₱1,000 of the fair market value or zonal value, whichever is higher).
Present to the Register of Deeds:
- Deed of Extrajudicial Settlement
- Original title
- Death certificate
- Marriage certificate
- Birth certificates
- CAR/Tax Clearance
- Publication affidavit
- Proof of payment of taxes and fees
The Register of Deeds cancels the old title and issues new titles in the names of the heirs in accordance with the partition. New titles are released after approximately 30–60 days.

A two-year period from registration allows any creditor to file a claim against the heirs personally. After two years, the settlement becomes conclusive against creditors.

Special Case – Affidavit of Self-Adjudication

If the surviving spouse is the sole heir (no children, parents, siblings, or other relatives), the surviving spouse executes a notarized Affidavit of Self-Adjudication, follows the same publication, estate tax, and registration steps. The spouse thereby adjudicates both the conjugal share and the entire estate share.

B. Judicial Settlement

Required when:

A will exists (probate mandatory).
Any heir is a minor or incapacitated.
Heirs cannot agree.
Debts exist and creditors demand court supervision.
The estate includes properties located in multiple judicial regions.

Testate Proceedings (If Will Exists)

File petition for probate in the Regional Trial Court (RTC) of the decedent’s last residence or where the principal property is located.
Court appoints an executor or administrator.
Will is proved; heirs and creditors notified.
After payment of debts and taxes, court issues an order of distribution.
New titles issued based on the court order.

Intestate Judicial Settlement

Petition for letters of administration or petition for partition.
Court appoints administrator.
Inventory, appraisal, payment of debts, partition, and distribution follow.

Judicial proceedings typically last 2–10 years and incur higher costs (filing fees, administrator’s bond, publication, attorney’s fees).

V. Partition After Settlement

Once titles are in the names of the co-owners, the property remains co-owned. Any co-owner may demand partition at any time (Civil Code, Art. 494). Partition may be:

Extrajudicial (notarized Deed of Partition, registered).
Judicial (action for partition in RTC).

After physical or legal partition, each owner holds a separate title and may sell independently.

VI. The Sale Process After Settlement

With clean titles in the heirs’ names:

All co-owners must execute a notarized Deed of Absolute Sale.
Seller(s) pay:
- Capital Gains Tax: 6% of the higher of (a) gross selling price or (b) BIR zonal value (final tax, paid by seller).
- Documentary Stamp Tax: 1.5% of the higher of selling price or zonal value (paid by seller, can be shifted by agreement).
- Local Transfer Tax: 0.5%–0.75% of selling price or fair market value (depending on city/municipality).
- Withholding tax if applicable (for corporations or non-residents).
Buyer pays registration fees and presents the deed, new titles, tax clearances, and proof of tax payments to the Register of Deeds for cancellation of sellers’ titles and issuance of new title in buyer’s name.

If the property is the family home and the surviving spouse qualifies, certain exemptions or reductions may apply under local ordinances, but capital gains tax remains 6%.

VII. Special Situations and Risks

Sale Without Settlement: Any disposition of the deceased’s undivided share without proper authority is null and void as to that share (Jurisprudence: Heirs of Yap v. Court of Appeals, among others). Buyers who accept “risk” purchases face difficulty obtaining clean financing or resale.
Minor Heirs: Court approval via guardianship proceedings required.
Missing or Unlocatable Heirs: Publication and court-appointed administrator necessary.
Foreign Spouse: Additional requirements under the Foreign Investment Act and dual-citizenship rules may apply.
Mortgaged Property: Mortgage must be settled or assumed; bank consent required.
Remarriage of Surviving Spouse: New property regime applies only to future acquisitions; prior settled properties remain governed by original succession.
Fraudulent Settlements: Action to annul may be filed within 4 years from discovery (Civil Code, Art. 1391).

VIII. Timelines and Costs (Approximate, 2026 Values)

Extrajudicial: 3–8 months; costs ₱50,000–₱300,000+ depending on property value (publication, notary, taxes, RD fees).
Judicial: 2–10 years; costs significantly higher.
Estate tax filing deadline: 1 year from death (late filing incurs 25% surcharge + interest).

IX. Essential Documents Checklist for Complete Transaction

Death Certificate (PSA)
Marriage Certificate (PSA)
Birth Certificates of all heirs (PSA)
Original Torrens Title
Tax Declaration and latest Real Property Tax receipt
BIR CAR / Estate Tax Clearance
Notarized Deed of Extrajudicial Settlement / Self-Adjudication / Partition
Newspaper publication clippings and affidavit
Deed of Absolute Sale
Capital Gains Tax Return and proof of payment
Documentary Stamp Tax return and payment
Local transfer tax receipt
Certificate of Non-Tax Delinquency (if applicable)

The surviving spouse or any heir may initiate the process. All steps must be strictly followed to produce a marketable title that banks, buyers, and government offices will accept without reservation. Proper documentation and timely compliance with tax and registration requirements eliminate future disputes and ensure the validity and enforceability of the sale.