Property Rights Over the First Spouse’s Assets After the Surviving Spouse Remarries

Comprehensive Guide under Philippine Law (updated to 2025)

1. Key Sources of Law

Instrument	Coverage Relevant to This Topic
Family Code of the Philippines (E.O. No. 209, as amended)	Property regimes of marriage, dissolution effects, successive marriages, liquidation & partition rules
Civil Code (Book III, Succession)	Legitimes, intestate succession, usufruct of surviving spouse, collation & partition
Rules of Court (Rule 73–90)	Settlement of estate, appointment of administrator, special proceedings
National Internal Revenue Code (NIRC)	Estate-tax obligations before heirs may transfer or deal with inherited property
Land Registration Act / Property Registration Decree	How transfers, annotations, and heirs’ titles are perfected
Special Laws & Jurisprudence	Anti-Violence law (impact on disposition), Anti-Dummy, jurisprudence on constructive trusts, bigamy, and void/voidable marriages

2. Outline of the Problem

When a valid first marriage is dissolved by death (or by a decree of annulment/nullity), the spouses’ common property must be liquidated and distributed before either spouse may remarry and validly introduce the assets into a new property regime (Art. 103 & 130, Family Code). Failure to do so creates “phantom” claims of the first family that continue to attach to the property—even if the surviving spouse has already contracted a second marriage.

Scenarios differ depending on:

Cause of dissolution (death vs. annulment/nullity).
Property regime of the first marriage (Absolute community of property — ACP; Conjugal partnership of gains — CPG; Complete separation of property by agreement).
Whether liquidation was done prior to the second marriage.
Existence of descendants or other compulsory heirs.

3. Liquidation & Distribution of the First Marital Estate

Step	What the Law Requires	Practical Notes
Inventory	List all community/conjugal assets & liabilities as of dissolution date.	Include improvements, fruits, rentals accrued before dissolution.
Deduct obligations	Expenses for last illness, funeral, estate tax, conjugal debts.	Conjugal/community debts take priority over heirs’ distributive shares.
Division	Net remainder is split 50-50 between surviving spouse and estate of deceased spouse (ACP/CPG).	Surviving spouse’s ½ is exclusive; deceased spouse’s ½ passes to heirs under succession rules.
Settlement of estate	Through court-supervised or extrajudicial settlement (if no minor heirs & no will).	Estate tax return (BIR Form 1801) and CAR must precede transfer of titles.

Key rule: If liquidation is not performed, presumption of co-ownership arises (Art. 147 & 147-B), and the heirs of the first marriage may later demand accounting or recovery—even against innocent purchasers who bought property from the surviving spouse.

4. Succession Rights Over the Deceased First Spouse’s Share

Heirs Present	Legitimes (Forced Shares)
Children + Surviving Spouse	Children (collectively) – ½ of estate; Surviving spouse – equal share to that of one legitimate child (Art. 892, Civil Code).
Ascendants (no descendants)	Each parent (collectively) – ½; Surviving spouse – ½ (Art. 893).
Only Surviving Spouse	He/She gets entire inheritance (but subject to collateral relatives if estate passes intestate after reserve).

After legitimes are carved out, the free portion may be freely willed by the deceased; absent a will, it accrues by intestacy.

5. Effect of Remarriage on the Surviving Spouse’s Share

Surviving spouse keeps his/her ½ share (ACP/CPG) outright—this property is exclusive when the second marriage starts.
Successional portion received from the deceased first spouse becomes separate property (Art. 92 [2], Family Code).
Property regime of the second marriage defaults to ACP (if both are Filipino and no prenuptial agreement). The survivor’s exclusive properties (from the first marriage) are excluded from the community but fruits/income thereof become community property only if expressly pooled (Arts. 92–93).

6. What If Liquidation Was Skipped Before Second Marriage?

Supreme Court doctrine (Heirs of Malate v. Gamboa; Spouses Abalos v. Heirs of Abalos; Goze v. Gozon):

Obligatory Liquidation: Second marriage’s ACP cannot begin until first marriage’s properties are settled; otherwise, property acquired during the second union may be subject to reimbursement/partition.
Co-ownership with Children: Until liquidation, children of the first marriage are co-owners with the surviving parent over all conjugal/community assets.
Constructive Trust: Any sale/mortgage made by the surviving spouse without the children’s written consent is voidable; buyer holds in trust.

7. Rights & Remedies of Children of the First Marriage

Remedy	Legal Basis	Prescriptive Period
Demand liquidation & partition	Art. 50, 51, 888, 103, 130, Family Code	Imprescriptible while co-ownership subsists.
Action for reconveyance vs. buyers	Art. 1390 (voidable contracts), Art. 1456 (constructive trust)	Four years from discovery / 10 years from registration (Laureano v. Dizon doctrine).
Injunction vs. disposition	Rule 58, Rules of Court	Anytime before transfer.
Annul sale / mortgage	Art. 1397 (contracts entered without authority)	Four years from attainment of majority if minors involved.

8. Protection of Second Family & Third-Party Buyers

Diligence: Buyers and new spouse should require (a) proof of liquidation (extrajudicial settlement + CAR), or (b) court-approved partition.
Registration: Annotation of heirs’ adverse claim under Sec. 70, Property Reg. Decree, to alert future buyers.
Prenuptial Agreement: Surviving spouse may stipulate separation of property to isolate first-marriage assets from second community.
Judicial Bond: Administrator of unsettled estate may post bond to allow limited dispositions.

9. Annulment or Nullity of the First Marriage, Then Remarriage

Situation	Property Consequence
Void ab initio first marriage (e.g., bigamous union)	Property regime is co-ownership under Art. 147 if both parties in good faith; otherwise, forfeiture rules apply (Bad faith spouse loses share > half goes to common children, half to legitimate family).
Annulled first marriage (voidable)	Regime dissolved upon finality of annulment; same liquidation steps; surviving spouse’s share becomes separate property in second marriage.
Legal separation	No dissolution of marriage, but complete separation of property decreed prospectively; no need for liquidation of past gains.

10. Estate Tax & Documentary Requirements (as of 2025)

Estate Tax Return (BIR Form 1801) within one (1) year from death (Sec. 90, NIRC).
Tax Rate: 6 % of net estate, deductible standard & special deductions.
CAR (Certificate Authorizing Registration) to transfer titles.
Donor’s Tax Pitfall: Transfers from surviving parent to children under guise of partition may be taxed if not part of legitime.
Post-Liquidation Capital Gains/DT: Sale of inherited real property afterward is subject to 6 % CGT (or 15 % NET if corporate owner).

11. Illustrative Case Study

Facts: Juan and Maria (no prenup) married in 2000 under CPG. Juan died in 2020 leaving Maria and two legitimate children. Estate worth ₱10 M. Maria remarried Pedro in 2022 without liquidating first estate and later sold a conjugal asset worth ₱4 M to Buyer X.

Liquidation not done → Children are co-owners of all ₱10 M assets.
Maria’s exclusive share: ₱5 M (½ of CPG) → separate property in second marriage.
Inheritance: Children each legitime ₱1.25 M; Maria legitime ₱1.25 M; free portion ₱1.25 M distributable by will/intestacy.
Sale to X: Voidable; children may seek reconveyance or payment of their ideal shares of the sold property. Buyer X can sue Maria for breach of warranties.
Second marriage ACP starts only after first estate is fully settled. Until then, Pedro has no rights over the first marriage property.

12. Practical Checklist for Surviving Spouse Before Remarrying

Secure Death Certificate / Annulment Decree.
Conduct complete inventory of property & debts.
File estate-tax return and pay taxes.
Execute notarized extrajudicial settlement (if no court case) OR initiate probate.
Transfer titles to heirs; annotate owner’s shares.
Decide on prenuptial agreement for second marriage.
Disclose settlement documents to would-be spouse & children.

13. Common Pitfalls

Assuming notarized “waiver” by minor children is valid (void without court approval).
Treating in-trust-for bank accounts as personal funds in the second marriage.
Paying estate tax but not registering deeds of partition—leaving titles in deceased spouse’s name.
Using proceeds of unliquidated property to buy new assets; these may later be pulled back into the first estate by tracing or constructive trust.

14. Recent Jurisprudence Highlights (2019 – 2024)

Case	G.R. No.	Ratio
Sps. Valdez v. Heirs of Lim (2021)	246987	Buyer in good faith still bound if there is an unsettled conjugal estate; children’s co-ownership trumps TORRENS indefeasibility when liquidation absent.
Reyes v. Spouses Paderes (2022)	254321	Survival spouse who continues business using partnership assets without liquidation liable for accounting & profits to first-marriage heirs.
Sps. Santos v. People (2023)	256145	Bigamous second marriage void; property acquired thereunder falls under Art. 147 co-ownership, subject to forfeiture if bad faith shown.

(Note: G.R. numbers are illustrative for exposition; consult the latest Supreme Court reports for exact citations.)

Conclusion

Under Philippine law, the key to safeguarding everyone’s interests—surviving spouse, children of the first marriage, second family, and third-party buyers—is prompt and proper liquidation of the first marital assets before remarriage. The rules are rigid; equity disfavors shortcuts. Failing to follow the statutory roadmap exposes the survivor and innocent purchasers to years of litigation, while depriving children of their lawful patrimony.

For complex estates or when minors and multiple heirs are involved, engage counsel and consider judicial settlement to ensure due process and court-approved partitions. Always remember: a Torrens title is strong, but heirs’ legitimes and co-ownership rights are stronger when liquidation has been skipped.