Sale of Estate Property by a Surviving Spouse Without Full Heir Consent: Remedies and Legitimes in the Philippines

This article explains what happens—legally and practically—when a surviving spouse sells estate property without the consent of all heirs in the Philippines. It covers property regimes, co-ownership rules, sales by administrators, remedies to challenge or cure a sale, and how legitimes are computed and protected. It is written for lawyers, notaries, brokers, and families navigating succession and real estate transactions.

1) First principles: what changes at death

Succession opens at death. Ownership and transmissible rights of the decedent pass to the heirs from the moment of death (Civil Code Art. 777). Until partition, the estate is generally held in co-ownership by the heirs.
Marriage property regime dissolves at death.
- Under Absolute Community of Property (ACP) or Conjugal Partnership of Gains (CPG), death dissolves the regime. The common fund is liquidated: one-half belongs to the surviving spouse, while the other half forms part of the decedent’s estate (subject to liabilities and legitimes).
- Under Separation of Property, only assets owned by the decedent fall into the estate.
Estate settlement channels. Estates may be settled:
- Judicially (probate/intestate) with a court-appointed executor/administrator; or
- Extrajudicially under Rule 74, §1 of the Rules of Court only if (a) the decedent left no will, (b) no debts, and (c) all heirs agree. Publication and, in some cases, a bond are required.

Practical point: Before anyone sells a specific estate property, determine (i) the property regime, (ii) whether the estate is under administration or eligible for an extrajudicial settlement, and (iii) who currently holds title (Torrens certificate, tax declaration, etc.).

2) Who can sell, and when

A. During marriage (for context)

Disposition of ACP/CPG property requires spousal consent (Family Code). Lack of consent generally makes the disposition void as to the spouse who did not consent. This backdrop matters because deeds executed shortly before death are sometimes attacked for lack of spousal consent or for being in fraud of legitimes.

B. After death (our main scenario)

Surviving spouse acting alone cannot validly dispose of the decedent’s share of estate property. The most that the spouse can convey without others’ consent is:
- His/Her own one-half of the former community/conjugal property (after liquidation), plus
- His/Her hereditary share (legitime and any free-portion share) after the estate is settled or rights are determined.
Co-ownership rule (Civil Code Art. 493). Any co-owner (including a surviving spouse who is also an heir/co-owner) may sell only his/her undivided ideal share. A sale by one co-owner does not bind the others. The buyer steps into the seller’s shoes as a co-owner pro-indiviso, not as owner of a determinate portion—unless and until partition assigns that portion.
Specific estate property vs. “hereditary rights.”
- A person may sell his/her hereditary rights in the estate (a sale of an aliquota share in the universal mass), even before partition.
- But a unilateral sale of a specific parcel belonging to the undivided estate cannot prejudice the undivided shares of the other heirs.
Sales by executors/administrators (Rule 89). If the estate is under court administration, only the court-appointed executor/administrator may sell real or personal estate with prior court approval when necessary (e.g., to pay debts/expenses). A sale made without required authority generally conveys no title to the extent it exceeds the seller’s authority.
Extrajudicial settlement pathway. If Rule 74 applies, the heirs (including the surviving spouse) may settle and distribute property by agreement, then sell. A unilateral sale before such settlement that purports to transfer the entire property is ineffective against non-consenting heirs.

3) Is the unilateral sale void, voidable, or valid in part?

As to the seller’s own share: Valid. The deed transfers only the seller’s undivided interest.
As to the other heirs’ shares: Not binding. The sale is ineffective beyond the seller’s share; courts commonly characterize the buyer as a co-owner to that extent.
Where the seller had no authority (e.g., an administrator without court leave): The sale is generally void or void for lack of authority as to the portion sold on behalf of the estate.
If spousal consent was required (pre-death conjugal disposition) and missing: Typically void as to the non-consenting spouse’s interest.
If the deed impairs compulsory legitimes: The transaction may be subject to reduction (for inofficious donations/dispositions) or attacked as in fraud of creditors/heirs, depending on the form and timing.

Bottom line: A surviving spouse cannot, by a unilateral deed, pass full title to the entire estate property. At best, the buyer acquires whatever interest the spouse could lawfully convey, and becomes a co-owner with the other heirs.

4) Remedies for non-consenting heirs

A. Pre-partition (estate undivided)

Action for declaration of nullity/ineffectivity (ultra vires) Seek a ruling that the deed is ineffective beyond the seller’s share (e.g., as to decedent’s half and other heirs’ shares). Consequent relief: reconveyance or cancellation of title to that extent.
Acción reivindicatoria / reconveyance If Torrens title has been transferred to the buyer, heirs may sue for reconveyance of the portion that belongs to the estate/heirs, unless protected by indefeasibility in favor of an innocent purchaser for value (IPV); if IPV has intervened, the usual fallback is damages against the seller and/or persons in bad faith.
Partition (judicial or by agreement) File partition to segregate ideal shares into determinate lots. The buyer from the surviving spouse can be impleaded as a co-owner to the extent of the spouse’s share; the rest remains with the co-heirs.
Estate administration Petition for letters of administration (if none) and move to avoid unauthorized sales and marshal assets. Sales of estate property should route through the administrator with court approval (Rule 89) when required.
Annotation/Notice Record adverse claims, lis pendens, or heir’s affidavits (as appropriate) to alert third parties and prevent further transfers.

B. When legitimes are impaired

Reduction of inofficious donations/dispositions (Civil Code Arts. 770–781, 906, 909–910). If the decedent, inter vivos or mortis causa, made dispositions that encroach on legitimes, compulsory heirs may sue for reduction to restore their legitimes.
Rescission for lesion/fraud (Arts. 1381 et seq.) Contracts in fraud of creditors (including, by analogy, co-heirs where warranted) may be rescissible within statutory periods when requisites are present.
Preterition (Art. 854) If a will omitted an entire line of compulsory heirs (e.g., all legitimate children), institution of heirs is annulled, and intestacy (total or partial) follows. This can unravel downstream sales from instituted heirs who lacked title.

C. Damages, mesne profits, ejectment

If a buyer usurps possession beyond the seller’s share or acts in bad faith, heirs may claim damages/mesne profits and pursue ejectment remedies to recover possession of the affected portion.

5) Defenses and buyer protection

Good faith and due diligence. Buyers should verify: (i) title history, (ii) marital status and property regime, (iii) death certificates, (iv) extrajudicial settlement or probate status, (v) heir consents, and (vi) required court authority for sales by administrators.
Indefeasibility of title & IPV. Once transfer to an innocent purchaser for value is registered, real property rights may be protected; aggrieved heirs may then have to pursue personal actions (damages) rather than real actions (reconveyance).
Two-year Rule 74 window. Under Rule 74, distributions made without compliance are subject to claims by heirs/creditors within two years, without prejudice to actions based on fraud that may persist beyond. Afterward, IPV considerations loom larger.

6) Computing legitimes (quick reference)

Compulsory heirs include: legitimate children/descendants; in their absence, legitimate parents/ascendants; the surviving spouse; and (subject to Civil Code distinctions) acknowledged illegitimate children.

Below is a field-practical summary (Civil Code, Arts. 887–915; simplified):

A. With legitimate children (or descendants)

Legitime of legitimate children: ½ of the estate, divided equally among them (Art. 888).
Surviving spouse’s legitime: Equal to the legitime of one legitimate child (Art. 892). This is commonly taken from the free portion, leaving the children’s ½ intact.
Free portion: Whatever remains after the above legitimes.

Example: Estate net value ₱12M; 2 legitimate children + surviving spouse.

Children’s collective legitime = ½ × 12 = ₱6M → ₱3M each.
Spouse’s legitime = ₱3M (equal to one child).
Free portion left = ₱12M − ₱6M − ₱3M = ₱3M (disposable by will; absent a will, it falls to intestacy).

B. No legitimate children; with legitimate parents/ascendants

Ascendants’ legitime: ½ of the estate (Art. 889).
Surviving spouse’s legitime: ½ of the estate when in concurrence with legitimate parents/ascendants (Art. 900).
Free portion is typically 0 (½ + ½).

C. Surviving spouse with illegitimate children only

Illegitimate children’s legitime: ½ of what a legitimate child would receive (Art. 895).
Surviving spouse’s legitime: ⅓ of the estate (Art. 900) when concurring with illegitimate children alone.
Balance: free portion.

Note: The law maintains distinctions between legitimate and illegitimate filiation in succession (subject to evolving jurisprudence). Always test current case law when the equality of shares is put in issue.

D. Surviving spouse alone (no descendants/ascendants/illegitimate children)

Spouse’s legitime: ½ of the estate (Art. 900).
Remaining ½ is free portion.

E. Effect of prior property regime

Remember to first liquidate ACP/CPG: compute estate from the decedent’s ½ of the community/conjugal assets plus exclusive properties, less debts/charges, before applying legitimes.

7) How to approach a contested unilateral sale—step-by-step

Freeze the fact pattern. Gather: marriage documents, property regime, titles/tax decs, death certificate, list of heirs, liabilities, prior deeds (donations, sales), and estate status (probate/EJS).
Trace authority and timing.
- Was the seller administrator? If so, was there prior court leave?
- If surviving spouse, did the deed occur before liquidation of ACP/CPG or before any EJS?
- Did the deed purport to convey the whole property or expressly only the seller’s share?
Label the deed’s effect.
- Valid in part (only as to seller’s undivided share) vs. void (lack of authority/spousal consent) vs. rescissible (fraud/lesion).
- Check if there is an IPV and the state of registration.
Choose remedies.
- Nullity/ineffectivity + reconveyance, partition, adverse claim/lis pendens, administration, reduction of inofficious dispositions, damages.
Calendar prescriptive periods.
- Void contracts: action to declare nullity is generally imprescriptible.
- Voidable/rescissible: often four (4) years) from specific starting points (e.g., discovery).
- Title-based actions (registered land): reconveyance periods vary; analyze issuance date of title and discovery of fraud; if barred vs IPV, pivot to damages.
Settlement leverage.
- Propose partition + equalization or buy-out of shares;
- If the buyer holds only the spouse’s undivided share, a negotiated allocation at partition can end stalemate.

8) Common scenarios (worked mini-examples)

Scenario 1: Conjugal lot; husband dies; wife sells whole lot without heir consent.

Effect: Sale binds only the wife’s ½ of the conjugal asset (post-liquidation) and any share she later takes as heir. It does not transfer the decedent’s ½ to the buyer.
Remedies for children: File nullity/ineffectivity as to their portions, reconveyance of ½ (less any hereditary share of the spouse), and partition. If title already shifted, annotate lis pendens and implead buyer.

Scenario 2: Estate under administration; administrator sells house without court approval.

Effect: Unauthorized; deed generally void as to the estate’s interest.
Remedy: Move in the estate case to declare sale void, recover property/possession, and if needed, sell properly with court leave.

Scenario 3: Will gives everything to a friend; surviving spouse and child left out.

Effect: Legitime violation.
Remedy: Reduction to restore the spouse’s share (equal to one legitimate child) and the child’s collective ½ legitime. Transfers to the friend are cut back.

Scenario 4: Buyer in good faith purchased from the surviving spouse, then re-sold to an IPV.

Effect: Real action for reconveyance may be barred by indefeasibility in favor of the IPV; heirs pursue damages against bad-faith parties and the original seller.

9) Drafting and notarial cautions

State capacity and authority precisely (e.g., “selling only my undivided interest of X%”).
For properties possibly within an estate, require:
- Proof of death and heirship;
- Deed of extrajudicial settlement (with publication compliance) or court order authorizing sale;
- Marital property liquidation computations; and
- Heir consents (or waiver/quitclaims) with IDs and marital statuses.
Flag minor heirs: sales/waivers involving minors require guardian appointment and court approval.

10) Quick checklists

For heirs contesting a unilateral sale

Secure certified copies of title, tax dec, deed, marriage & death certificates.
Determine regime (ACP/CPG/Separation) and make inventory.
File adverse claim/lis pendens if appropriate.
Evaluate nullity vs reconveyance vs damages strategy and prescription.
Initiate judicial administration or partition.
Compute legitimes and, if impaired, sue for reduction.

For buyers dealing with a surviving spouse seller

Demand extrajudicial settlement signed by all heirs (Rule 74), with publication, or a court order authorizing sale.
If still undivided, accept only the seller’s undivided interest, priced accordingly, and be prepared for partition.
Verify no minor heirs or obtain court-approved guardianship.
Obtain marital regime proof and conjugal asset liquidation.
Title warranties and indemnities; consider escrows.

11) Key doctrinal anchors (for orientation)

Succession opens at death (Art. 777); co-ownership until partition (Arts. 484–501); co-owner may sell only his share (Art. 493).
Executor/administrator sales require court approval when necessary (Rule 89).
Extrajudicial settlement requires unanimity of heirs, no debts, publication (Rule 74).
Compulsory heirs and legitimes (Arts. 887–915); reduction of inofficious dispositions (Arts. 770–781, 906, 909–910).
Void vs voidable/rescissible contracts; prescription rules; indefeasibility and IPV under the Torrens system.

12) Takeaways

A surviving spouse cannot unilaterally pass full title to estate property; at most, he/she conveys his/her own undivided share (and only within the bounds of the property regime and succession rights).
Non-consenting heirs can invalidate or limit the deed, reconvey, and partition—and restore legitimes if impaired.
Buyers should insist on authority and unanimity (or court leave) and calibrate price and expectations if acquiring only an undivided interest.

Disclaimer

This article summarizes Philippine private law principles at a high level. Particular facts (timing, registrations, minors, debts, wills, tax issues) can materially change outcomes. For live disputes or transactions, seek individualized legal counsel and check the most recent jurisprudence.