Succession Rights over the Separate Property of a Deceased Spouse
(Philippine law, updated to 24 June 2025)
1. Key Statutes & Sources
| Law / Issuance | Relevance |
|---|---|
| Civil Code of the Philippines (Republic Act No. 386, eff. 1950) | Book III on Succession: legitimes, order of intestacy, wills, collation, partition, disinheritance. |
| Family Code of the Philippines (Exec. Order 209, eff. 3 Aug 1988) | Defines default marital property regimes and what counts as exclusive or separate property. |
| Tax Code, as amended by RA 10963 (TRAIN) | Flat 6 % estate-tax rate and procedural deadlines. |
| Rules of Court (Rule 73–91) | Probate, letters testamentary/administration, settlement, escheat. |
| Special laws (e.g., Indigenous Peoples’ Rights Act, Agrarian Reform laws, Condominium Act) may overlay special rules on certain assets. |
(Philippine succession remains civil-law–centric: you always start with the Civil Code unless a special statute says otherwise.)
2. What Is “Separate” (or “Exclusive”) Property?
| Marriage regime | How separate/exclusive property is defined |
|---|---|
| Absolute Community of Property (ACP) – the default for marriages celebrated on/after 3 Aug 1988 | Art. 92, Family Code: property (a) acquired before marriage; (b) acquired during marriage by gratuitous title unless donor/grantor expressly says otherwise; (c) personal and exclusively for personal/occupation/profession; (d) acquired after judicial separation of property; (e) in exchange for or by redemption of any of the foregoing. |
| Conjugal Partnership of Gains (CPG) – default for marriages before 3 Aug 1988, unless another settlement | Art. 109, FC: property brought into the marriage by each spouse or acquired gratuitously during marriage remains paraphernal or capital; fruits and gains become conjugal. |
| Complete Separation of Property (by prenuptial agreement or by court decree) | All property acquired by each spouse is inherently separate unless jointly registered. |
Separate property is not part of the community/conjugal mass. Upon death, it is distributed under succession rules after first setting aside the survivor’s own one-half share of any communal property.
3. First Step on Death: Property Inventory & Characterization
Identify assets – land, buildings, shares, bank deposits, intellectual property, vehicles, receivables, digital assets, etc.
Classify each item as:
- community / conjugal; or
- exclusive/separate of either spouse.
Deduct obligations chargeable against the separate property (e.g., mortgage specific to that land).
Only the net exclusive estate passes by succession.
4. Two Pathways: Testate vs Intestate
| With a valid will | No will / void will | |
|---|---|---|
| Free disposition | Decedent may assign only the free portion; cannot impair compulsory heirs’ legitimes. | Entire estate follows legal intestacy shares. |
| Probate | Must be proved before a court; allows appointment of executor. | Petition for letters of administration if size or circumstances require. |
5. Compulsory Heirs & Their Legitimes in Separate-Property Estate
(Numbers refer to portion of the net exclusive estate; the survivor’s share in community property sits outside these fractions.)
| Configuration (deceased’s relatives who survive) | Legitime of spouse | Legitime of each legitimate child / descendant | Legitime of legitimate parents / ascendants | Notes |
|---|---|---|---|---|
| Spouse + 1 child | 1/4 | 1/4 | — | Remaining 1/2 is free portion (Art. 888). |
| Spouse + 2 + children | Equal to each child’s one share (estate divided equally among all, each gets legitime share; free portion also divided equally) | Same as spouse | — | Art. 892: “per capita” among same degree. |
| Spouse only (no descendants, no ascendants) | 1/2 | — | — | Art. 899. Balance is free portion—may go to collaterals or anyone via will, or to intestate heirs. |
| Spouse + legitimate parents/ascendants | 1/3 | — | 1/3 | Art. 893. Middle third is free portion. |
| Illegitimate child(ren) also present | Combine legitimes; legit child : illegit child = 1 : 1/2 (Art. 895). Spouse’s share adjusts so total legitimes = 1/2. | Spouse anchors at 1/4 if with one legitimate child. | ||
| Spouse + illegitimate child only (no legitimate kids) | 1/2 | 1/2 divided among illegit child(ren) | — | Spouse and illegitimate child share estate equally when both are compulsory heirs (Art. 902). |
Mnemonic: Surviving spouse’s legitime is always 1/2 of the estate when alone with ascendants or illegitimates, and equal to a legitimate child’s share when legitimate descendants exist.
6. Intestate Shares of the Separate Property
If the deceased left no will, the Civil Code’s intestacy rules (Arts. 960–1016) allocate the net exclusive estate as follows (after settling community property):
| Class of heirs | Intestate share in separate property |
|---|---|
| With legitimate descendants | Estate divided per capita between surviving spouse and legitimate children (Art. 996). If descendants are by representation (grandchildren), they take “per stirpes.” |
| No descendants but legitimate parents/ascendants exist | Surviving spouse takes 1/2, legitimate parents/ascendants take 1/2 (Art. 997). |
| Neither descendants nor parents/ascendants | Surviving spouse inherits all separate property (Art. 1001) unless siblings, nieces/nephews, or other collaterals up to 5th degree exist—in which case spouse gets 1/2, collaterals share the other 1/2 (Arts. 1001–1006). |
| None of the above | Property escheats to the State (Art. 1011). |
7. Disinheritance & Waiver
- Valid disinheritance (Arts. 919–921) must be for a legal cause and stated in a will; otherwise it is ineffective and the compulsory heir keeps the legitime.
- Renunciation of an inheritance before death (future succession) is void; waiver after death must be in a public instrument or in court and is generally subject to donor’s-tax consequences.
8. Procedural Pathways to Transfer Title
| Scenario | Typical route |
|---|---|
| Gross estate ≤ ₱5 million and no will, no debts | Extrajudicial Settlement (Sec. 1, Rule 74): heirs execute notarized Settlement & Adjudication, publish once a week for three weeks; file with Registry of Deeds and BIR. |
| With will or substantial estate/debts/minor heirs | Probate or letters of administration before the Regional Trial Court; inventory, notice to creditors, liquidation, project of partition, approval. |
| Real-property title transfer | BIR eCAR → pay 6 % estate tax (within 1 year of death, extendible) → Local transfer tax → Register of Deeds issues new OCT/TCT in heir’s name. |
| Shares of stock | SEC Form 52, corporate secretary’s transfer, possible bank escrow if disputes exist. |
9. Estate-Tax Essentials (TRAIN-era)
| Item | Rule |
|---|---|
| Rate | Flat 6 % on the net estate exceeding ₱5 million standard deduction + ₱500k family home deduction (if applicable). |
| Return & payment | File within 1 year of death (Sec. 90, Tax Code) – extensions of 30 to 180 days possible for meritorious reasons. |
| Liability | Subsidiary: heirs, beneficiaries, executors/administrators are personally liable up to the value received. |
| No distribution | Court cannot approve partition, nor Registry of Deeds effect transfer, without BIR electronic Certificate Authorizing Registration (eCAR). |
10. Special Asset Classes
- Condominium units – subject to homeowners’ association right of first refusal only if by-laws so provide.
- Agricultural lands under CARP – may be subject to retention limits; heir must be qualified farmer/tiller or land may revert to DAR.
- IPs/ICCs ancestral domains – governed by customary law; NCIP clearance required.
- Life insurance proceeds – if irrevocable beneficiary, not part of estate; if revocable, they fall into free portion.
11. Practical Checklist for the Surviving Spouse
| Action | Why it matters |
|---|---|
| Secure death certificate & marriage certificate | Proof of marriage and date of death. |
| Gather titles, certificates, contracts, bank statements | Establish which assets are separate. |
| Obtain certified true copies of titles & check annotations | Reveal liens, prior sales, court orders. |
| Compute net estate & prelim legitime matrix | Aids in early negotiations among heirs. |
| Decide early on extrajudicial vs. probate | Saves time and money or preserves evidence, respectively. |
| File estate-tax return even if estate is below taxable threshold | Required to secure eCAR. |
| If minor heirs: arrange guardian ad litem or bond | Court approval needed for any waiver/partition. |
12. Case-Based Illustrations
ACP marriage, will leaves everything to charity; decedent has 3 legitimate kids + spouse Step 1: Surviving spouse first gets ½ of community property as her share. Step 2: Only the separate property + spouse’s half of community property constitute “estate” for legitime. Step 3: Legitimes eat up ½ of that estate (¼ among children, ¼ to spouse). Charity may receive only the free ½.
CPG marriage, no will, assets are (a) land bought before marriage, (b) shares bought during marriage Land is husband’s separate property. Shares are conjugal gains. On husband’s death, wife first takes her ½ of shares; land is distributed ½ wife, ½ children (Art. 996).
Separation of property prenup, no children, only siblings survive Spouse inherits ½ of decedent’s exclusive estate; siblings share the other ½ per capita (Art. 1001).
13. Common Pitfalls
- Treating all assets as conjugal when some are clearly exclusive—causes over-taxation or disinherited children.
- Failing to file estate tax within 1 year—penalties reach 25 % surcharge + 6 % legal interest per annum.
- Overlooking digital assets (crypto wallets, online shops) that may have significant value.
- Ignoring usufruct rights of the spouse over family home when small children remain.
14. Take-Aways
The character of property—community, conjugal, or separate—must always be determined first. Surviving spouses do not automatically get “everything”; their successional share depends on who else survives and on legitime rules. Careful inventory, prompt tax compliance, and choosing the right settlement path keep the transfer clean, faster, and cheaper.
When in doubt, consult both an estates-and-family-law practitioner and a tax professional—getting it right at the start avoids years of intra-family litigation and BIR surcharges.
(End of article)