Spouse’s Right to Sell Property When There Are No Children: A Complete Guide Under Philippine Inheritance Law
(Philippine Civil Code, Family Code & key jurisprudence)
1. Why two separate questions overlap
When people ask whether a husband or wife may sell property when the couple has no children, they are often mixing two legal situations:
| Question | Stage of life | Governing rules |
|---|---|---|
| “Can I sign a deed of sale without my spouse?” | Both spouses alive | Property-relations regime during marriage (Family Code arts. 75–135) |
| “May a surviving spouse sell the house now that my spouse has died and we have no children?” | One spouse dead | Succession & settlement of the estate (Civil Code arts. 960 ff.; Rules of Court, Rule 74) |
The answer changes depending on (a) the marital property regime and (b) who else—in place of children—stands to share the estate (parents, siblings, or nobody). Below is a full treatment of both dimensions.
PART I During the marriage: disposal of property while both spouses are still alive
2. Identify your property regime first
| Regime (default dates) | What property is common | Consent rule for sale of common property |
|---|---|---|
| Absolute Community of Property (ACP) – marriages 5 Aug 1988 → present unless pre-nup | All property owned or acquired before & during marriage except exclusive items in Art. 92 FC | Both spouses must sign. A unilateral sale is voidable (Art. 96 FC; Abalos v. CA, G.R. 103182, 23 Sep 1992) |
| Conjugal Partnership of Gains (CPG) – marriages before 5 Aug 1988 (without pre-nup) | Earnings & acquisitions during marriage only; “capital” property remains exclusive | Both spouses must sign. Voidable (Art. 124 FC) |
| Separation of Property – must be in a valid pre-nup, or judicial decree | None; each spouse owns and controls his/her own estate | Each spouse may sell his/her own property alone |
Key point: Whether you have children is irrelevant at this stage; what matters is the consent rule of the regime.
Exclusive property (Art. 92 & 109 FC) such as assets acquired by gratuitous title (e.g., inheritance) belongs solely to the spouse to whom it was given; that spouse may generally sell it alone, but only if it is truly exclusive and not commingled.
3. Consequences of selling without the other spouse’s consent
| Scenario | Effect | Remedy / prescription |
|---|---|---|
| Sale of ACP/CPG property by one spouse without the other’s written consent | Voidable at the instance of the non-consenting spouse or heirs (Arts. 96, 124 FC); buyer acquires no title once annulled | Action must be filed 4 years from discovery (Art. 1391 CC) |
| Buyer acted in bad faith & registered title | Registration does not cure the defect; title may be cancelled (Spouses Abalos, Spouses Benito v. CA, G.R. 123803, 15 Dec 1999) | |
| Exclusive property sold by owning spouse | Valid if really exclusive. Note: burden of proof on buyer to verify exclusivity if title is in both names. |
PART II After the death of a spouse: sale of estate assets when there are no children
4. Step 1: Determine the set of heirs and legitimes
Under intestate succession (no will), the surviving spouse is a compulsory heir. When there are no descendants, legitime rules shift:
| Other surviving relatives | Legitime (mandatory share) | Free portion |
|---|---|---|
| Parents or ascendants exist (Art. 1001 CC) | ½ to surviving spouse, ½ to parents | None |
| No parents, but siblings/nephews (collateral relatives) exist (Art. 1002 CC) | ½ to surviving spouse, ½ to collaterals | None |
| No other heirs (spouse is sole intestate heir) | 100 % to surviving spouse | N/A |
Plus: the surviving spouse first takes back his/her one-half share of any community or conjugal property (liquidation of regime). Only the deceased’s net one-half enters the estate.
5. Step 2: Liquidate the marital property regime
- Inventory & liquidation (Arts. 103–104 FC).
- Deliver each spouse’s exclusive assets and the surviving spouse’s own share of ACP/CPG.
- The net estate (decedent’s share + exclusive assets of decedent) becomes co-owned by the heirs in proportion to their legitimes.
Until partition, each heir owns only an undivided ideal share (Art. 1078 CC).
6. Step 3: Can the surviving spouse sell?—Three classic scenarios
| Scenario | Can spouse sell entire property? | What can lawfully be conveyed |
|---|---|---|
| Spouse is sole heir (no parents, no collaterals) | Yes, but only after (a) estate taxes paid and (b) title transferred via extra-judicial settlement with self & annotated on title (Rule 74, Sec. 1) | Full ownership |
| There are ascendants or collaterals and they all join the sale | Yes. All heirs sign deed of partition & sale | Full ownership |
| Ascendants/collaterals exist but do not consent | No. Spouse may sell only his/her undivided share; buyer becomes co-owner (Heirs of Malate v. Gamboa, G.R. 186540, 18 Jun 2014) | Pro-indiviso share (number of heirs considered) |
Practical tip: Buyers typically require (1) extra-judicial settlement deed (EJS) acknowledged before a notary, (2) proof of publication of the EJS in a newspaper for 3 consecutive weeks, (3) BIR eCAR showing estate tax paid, and (4) updated Transfer Certificate of Title (TCT) in sellers’ names.
7. Partition & sale through judicial settlement
If heirs cannot agree, any heir (including the surviving spouse) may file Special Proceedings for Settlement of Estate (Rule 73 ff.). The court:
- Appoints an administrator/executor;
- Hears and approves inventory & appraisal;
- Authorizes sale of estate property when necessary to pay obligations (Rule 89), even over an heir’s objection;
- Issues a project of partition.
A deed executed by the court-appointed administrator pursuant to a court order is valid even without all heirs’ signatures.
8. Frequently misunderstood points
| Myth | Correct rule / authority |
|---|---|
| “Because we have no kids, the surviving spouse automatically owns everything and can sell tomorrow.” | Only true if no ascendants and no collaterals remain. Otherwise, surviving spouse owns only an ideal half plus his/her marital share. |
| “Putting the house in my name alone avoids my spouse’s legitime.” | During marriage under ACP/CPG, a unilateral transfer to oneself is void and still forms part of the community (Art. 96/124 FC). Upon death, legitimes are computed from ownership in law, not the face of the title. |
| “Registration cures all defects.” | Torrens registration does not validate a deed that is void/voidable for lack of required consent (San Miguel Properties v. Perez, G.R. 137290, 20 Jul 2011). |
| “Buyer in good faith gets the whole.” | Buyer gets only what the seller could convey (doctrine of nemo dat). If seller/heir owns an undivided ½ share, buyer becomes co-owner as to that ½ only. |
9. Relevant statutory provisions (selected)
Family Code of the Philippines
- Art. 96 & 124 – Requirement of written consent of both spouses to dispose of ACP/CPG property.
- Arts. 109–113 – Exclusive property of each spouse.
- Arts. 103–104 – Liquidation of property regime at dissolution of marriage.
Civil Code
- Arts. 960–1101 – Intestate succession; legitimes of heirs.
- Art. 1078 – Co-ownership before partition.
- Art. 493 – Co-owner may sell only his ideal share.
Rules of Court
- Rule 74 – Extra-judicial settlement of estates.
- Rules 73 - 90 – Judicial settlement & administration.
10. Leading Supreme Court cases
| Case | G.R. No. | Holding |
|---|---|---|
| Spouses Abalos v. Court of Appeals | 103182, 23 Sep 1992 | Sale of conjugal land by husband alone is voidable; action by wife/heirs within 4 years succeeds. |
| Heirs of Malate v. Gamboa | 186540, 18 Jun 2014 | Surviving spouse who sold entire property without siblings’ consent transferred only his undivided share; buyer becomes co-owner. |
| San Miguel Properties v. Perez | 137290, 20 Jul 2011 | Torrens title cannot defeat an heir’s right when deed of sale was void for lack of spousal consent. |
| Spouses Uy v. CA | 104904, 10 Jan 1994 | Definitions of exclusive vs. conjugal property; burden on spouse claiming exclusivity. |
11. Checklist for surviving spouses planning to sell
- Trace the title history – identify if property was community, conjugal or exclusive.
- Secure death certificate & trigger regime liquidation.
- Identify all heirs (parents, siblings, illegitimate children).
- Compute estate taxes (BIR Form 1801) and obtain eCAR.
- Prepare an Extra-Judicial Settlement if uncontested; publish.
- Transfer titles to heirs before or simultaneous with sale.
- Insist on buyers depositing 6 % capital-gains / DST separately to avoid shortages.
12. Practical drafting tips
- Deed Caption: “DEED OF EXTRA-JUDICIAL SETTLEMENT OF ESTATE WITH ABSOLUTE SALE.”
- Recitals: state absence of children, list living parents/siblings, reference publication.
- Authority clause: if judicial, cite probate order.
- Habendum: spell out “only the undivided participation” if co-owners have not joined.
- Acknowledgment: all heirs (or administrator) must appear before the notary with government IDs.
13. Penalties for non-compliance
- Estate tax deficiency: 25 % surcharge + 20 % annual interest (NIRC 1997, as amended).
- Evasion through simulated sale: liable for tax fraud & prision correccional (Sec. 254, NIRC).
- Forgery of spouse’s signature: falsification (Art. 171, Revised Penal Code).
14. Conclusion
The absence of children does not grant the surviving spouse carte blanche to dispose of property. The power to sell hinges on:
- What regime governed the marriage when both spouses were alive, and
- Which relatives survive the decedent, thereby sharing in the estate.
A spouse who disregards these layers risks voiding the sale, cancelling titles, and incurring tax and criminal liability. Always liquidate, settle, and partition before conveying, or at the very least ensure every heir (or the probate court) is on board.
This article is for informational purposes only and is not a substitute for individualized legal advice. Consult a Philippine lawyer or estate specialist for specific cases.