Succession of Inherited Property When Spouses Die Childless (Philippines) Everything you need to know, organised as a step-by-step guide for lawyers, heirs, and would-be testators
1. Key statutes & why they matter
| Law | Core provisions relevant here |
|---|---|
| Civil Code of the Philippines (Book III, Arts. 960-1101) | Defines legitimes, order of intestate succession, simultaneous death (Art. 43), collation, partition, prescription. |
| Family Code of 1987 | Creates the default property regime of Absolute Community of Property (ACP) and preserves Conjugal Partnership of Gains (CPG) for spouses married before 3 Aug 1988 who did not opt into the new regime. |
| National Internal Revenue Code (as amended) & BIR regulations | Estate-tax rates, deductions, filing deadlines, tax clearance before title transfer. |
| Rules of Court, Rules 73-90 | Procedural framework for settlement of estates, whether testate or intestate. |
| Property Registration Decree (PD 1529) | Annotating titles after extrajudicial or judicial partition. |
Pro tip: When the spouses leave no descendants, ascendants (parents or grandparents) and the surviving spouse become compulsory heirs with guaranteed legitimes. Collateral relatives (siblings, nephews/nieces) inherit only if no ascendant survives.
2. Step 1 — Fix the property regime first
| Characterisation question | Resulting shares on death |
|---|---|
| Absolute Community of Property (ACP) (Family Code, Art. 91) | All property not excluded by law is community. When either spouse dies, the community is dissolved → ½ belongs to the surviving spouse as her share even before succession, the other ½ forms the “net estate.” |
| Conjugal Partnership of Gains (CPG) | Net conjugal gains are split 50-50; exclusive properties return intact to each owner or his estate. |
| Separation of Property / Pre-nup | Each estate is inventoried separately. |
| Property acquired by gratuitous title (donation, inheritance) | Remains exclusive under both ACP and CPG unless the donor stipulates otherwise (Family Code, Art. 92(2)). |
Because the spouses have no children, after liquidation each individual estate passes to that spouse’s own heirs under either a will or intestacy.
3. Step 2 — Is there a will?
3.1 Testamentary freedom v. legitime
- Compulsory heirs cannot be deprived of their legitime except for valid causes of disinheritance (Civil Code, Arts. 887, 915-923).
- When childless, the compulsory heirs and their legitimes are:
| Compulsory heir | Legitime (fraction of net estate) |
|---|---|
| Surviving spouse alone | ½ |
| Legitimate ascendants alone | ½ |
| Surviving spouse + legitimate ascendants | ½ of estate set aside; then split equally between spouse and each ascendant (Art. 899). Example: both parents live → spouse ⅓, father ⅓, mother ⅓. |
The “free portion” (whatever is left after the legitime) may be given by will to any person or entity, including collateral relatives or charities.
3.2 Substitution, fideicommissary gifts, usufructs
Lawful, but must respect compulsory shares and the two-generation limit for fideicommissary substitutions (Art. 863).
4. Step 3 — No will? Apply intestate succession
4.1 Order of intestate succession (Civil Code, Art. 960 et seq.)
- Legitimate children & their descendants
- Legitimate parents & ascendants
- Illegitimate children & descendants
- Surviving spouse
- Brothers & sisters, nephews & nieces (by right of representation)
- Other collateral relatives up to the 5ᵗʰ degree
- The State
Because the couple is childless, focus on rows 2-5.
4.2 Intestate shares when childless (selected scenarios)
| Survivors | Share of estate |
|---|---|
| Only the spouse (no ascendants, no collaterals) | 100 % |
| Spouse + both legitimate parents | Estate ÷ 3 equal parts (Art. 998) |
| Spouse + one legitimate parent | ½ each |
| Spouse + grandparents (no parents) | Same “share-as-each-ascendant” rule → if two grandparents: estate ÷ 3. |
| No ascendants, spouse + siblings | Spouse takes ½; siblings (as a group) take ½, divided per capita (Art. 1001). |
| No ascendants, no spouse, siblings only | Entire estate to siblings (nephews/nieces by representation if a sibling predeceased). |
| No heirs up to 5ᵗʰ degree | Escheats to the national, provincial, or city government (Art. 1011). |
5. Step 4 — What if both spouses die?
5.1 Successive deaths (one after the other)
The usual case: Husband dies on 1 June 2025; Wife dies on 5 June 2025.
First estate (Husband):
- Liquidate property regime.
- Wife automatically receives her half of community property plus her intestate/testate share of Husband’s net estate.
Second estate (Wife):
- Includes: (a) Wife’s original exclusive property, (b) her ½ share of community, and (c) whatever she just inherited from Husband.
- Heirs of Wife now inherit all three buckets.
Common pitfall: Heirs often forget that the portion Wife received from Husband must still form part of her gross estate for estate-tax purposes.
5.2 Presumed simultaneous death (commorientes rule, Art. 43)
When evidence does not show who died first (e.g., plane crash, house fire):
| Principle | Practical effect |
|---|---|
| No transmission of rights between the spouses | Neither is treated as having inherited from the other. |
| Liquidate the property regime as though still married | ACP/CPG is divided ½-½ between their estates. |
| Each half passes to that spouse’s own heirs | Apply testate/intestate rules separately. |
6. Step 5 — Settling the estate(s)
6.1 Extrajudicial settlement (EJS)
Permissible if:
- No will, or the will is already probated.
- No minor/incapacitated heirs, or they are duly represented.
- Heirs are in unanimity.
Documents & deadlines
| Requirement | Authority | Deadline |
|---|---|---|
| BIR Form 1801 & estate-tax return | NIRC, Sec. 90 | Within one year from death (recent bills extend to 2 years but await IRR). |
| Notice of death to BIR RDO | Sec. 90(B) | Within 30 days from death if gross estate > PHP 5 M or subject to estate tax. |
| Publication of EJS | Rule 74 | Once a week for 3 consecutive weeks in a newspaper of general circulation. |
| Affidavit of Self-Adjudication / Deed of EJS | Rule 74; PD 1529 | Annotated on TCTs/CTFs; filing fees with RD. |
6.2 Judicial settlement
File a petition for issuance of letters of administration (intestate) or allowance of will (testate) in the RTC. Useful if heirs are hostile, a minor heir’s share is in issue, or questionable creditors appear.
7. Step 6 — Estate tax & title transfer checklist
- Inventory & valuation: realty zonal values or FMV, personalty at book or FMV.
- Deductions: standard deduction (₱5 M), family home (₱10 M cap), funeral, medical (within 1 yr, ₱500 k cap), debts.
- Estate tax: 6 % of net estate (TRAIN Law, RA 10963).
- Certificate authorizing registration (CAR) from BIR.
- Registry of Deeds: surrender old TCTs/CTFs; pay transfer fees; secure new titles in the names of heirs or buyers.
- BIR capital-gains or donor’s tax if heirs later sell or donate.
8. Frequently asked questions
Can we give everything to a favourite niece by will? Only the free portion. The spouse (and ascendants, if any) cannot be deprived of their legitimes.
My parents adopted me—do I inherit as a child? Yes. Under RA 8552 an adoptee is a legitimate child for all intents and purposes, outranking ascendants and spouse in intestacy.
What about illegitimate parents/ascendants? They are not compulsory heirs and inherit only in default of legitimate ascendants, spouse, and legitimate collaterals.
Do half-siblings inherit? Yes, but they take half the share of full-blood siblings in intestacy (Art. 1006).
Is a live-in partner a “surviving spouse”? No. Only a marriage valid under Philippine law (or a foreign marriage recognised here) confers spousal succession rights.
9. Practical planning pointers
- Make a will early—childless couples often want property to flow to chosen relatives or charities and to minimise double taxation in back-to-back deaths.
- Consider a mutual survivorship clause in life-insurance policies; insurance proceeds go outside the estate and directly to the beneficiary.
- Donate while alive to take advantage of donor’s-tax exemptions for gifts ≤ ₱250 k/year per donee and to avoid commorientes complications.
- Keep titles and deed files orderly; delays in locating documents prolong settlement and increase penalties.
- Use staggered estate planning (e.g., leaving usufruct to spouse, bare ownership to collateral heirs) to soften the impact of estate taxes and still protect the surviving spouse.
10. Cheat-sheet summary
- Identify property regime → split community property.
- Look for a will → reserve legitimes.
- If no will: spouse and ascendants inherit first; collaterals only if no ascendant.
- Successive v. simultaneous death radically changes who inherits and how many estate-tax returns are required.
- File estate-tax return within one year (watch for law updates).
- Publish, pay, annotate titles—skip any of these and transfers will be refused by the Registry of Deeds.
Disclaimer
This article is for informational purposes and does not constitute legal advice. Succession outcomes hinge on exact facts, dates, existing wills, and evolving tax rules. Always consult a Philippine lawyer or estate-planning professional for case-specific guidance.