I. Overview

When a person who owns real property in the Philippines dies while living abroad, their land does not automatically pass to whoever is “named in the title” or to whoever lives in the property. Philippine law on succession, family property regimes, and even conflict of laws all come into play.

This article explains, in the Philippine context:

How Philippine law treats succession to Philippine real property when the decedent dies abroad
The rights of the surviving spouse, children, and other heirs
How the foreign residence or nationality of the decedent or heirs affects the distribution
Practical implications for titles, partition, and settlement

This is general information, not a substitute for specific legal advice on a particular estate.

II. Core Legal Framework

1. What law governs succession?

Two key principles are at work:

Nationality principle (succession law)
- As a general rule, the national law of the decedent governs testamentary and intestate succession (who inherits, in what shares, validity of a will’s provisions, legitime, etc.).
- Example: A Filipino citizen who dies in Canada leaving land in Cavite is still generally governed, as to succession rules, by Philippine law, since that is their national law.
Lex rei sitae (law of the place where the property is located)
- Real property (land, buildings) is governed by the law of the country where it is situated, as to issues like registration, formalities of transfer, forms of conveyance, and some public policy limitations (e.g., foreign land ownership rules).
- So even if a foreign law is said to govern succession, the transfer and registration of a Philippine title must comply with Philippine land and registration laws.

In practice, for Philippine land:

If the decedent is Filipino: Philippine succession rules (legitime, compulsory heirs, etc.) almost always apply.
If the decedent is a foreigner: Foreign law may govern many aspects of succession, but Philippine law will still control how the land is held or registered, and certain Philippine public policies may prevail (e.g., land ownership limitations).

III. Is the Real Property Even Part of the Estate?

Before talking about “shares,” you must first ask: How much of the real property actually belongs to the decedent?

This depends on the property regime of the marriage.

1. Common property regimes

Absolute Community of Property (ACP)
- Default for marriages under the Family Code (generally, marriages on or after 3 August 1988), unless there is a valid marriage settlement.
- Almost all property acquired during the marriage (with limited exceptions) is co-owned by the spouses.
Conjugal Partnership of Gains (CPG)
- Default for many earlier marriages under the Civil Code (before the Family Code), unless agreed otherwise.
- Properties owned by each spouse before marriage remain separate, while properties acquired during the marriage through their joint efforts or by chance (e.g. winnings) form the conjugal partnership.
Complete separation of property
- Only if expressly agreed in a valid marriage settlement or decreed by a court (e.g., in certain cases).

2. Effect on the estate

Step 1 – Liquidate the property regime.

Example (ACP or CPG):

Land in Bulacan is titled in the husband’s name alone, but it was bought during the marriage using conjugal funds.
The husband dies.
For succession purposes:
- ½ of that property is the share of the surviving spouse as co-owner. This portion is not part of the estate.
- Only the other ½ (the decedent’s share) enters the estate and will be subject to succession (legitime, etc.).

If the property is truly exclusive to the decedent (e.g., acquired before marriage, or strictly via inheritance or donation to him/her alone), then 100% of it forms part of the estate (subject still to other rules like legitime).

This step is often overlooked and leads to errors where heirs mistakenly divide the entire property, when only the decedent’s net share should be partitioned.

IV. Who Are the Heirs? Compulsory Heirs and Legitime

Philippine law provides for compulsory heirs who cannot be deprived of their minimum share (the legitime) except for very limited grounds (e.g., valid disinheritance).

1. Compulsory heirs in general

Under Philippine civil law, the main compulsory heirs are:

Legitimate children and their descendants
Legitimate parents and ascendants (but only if there are no legitimate children/descendants)
Surviving spouse
Illegitimate children (including acknowledged, legally adopted, and certain recognized children, following specific rules)

The State ultimately inherits only if there are no heirs.

2. Order of priority (very simplified)

If there are legitimate children (or descendants via representation), they come first.
Legitimate parents/ascendants are excluded by legitimate descendants.
Illegitimate children and the surviving spouse normally concur with legitimate children (under specific rules).
If there are no descendants and no ascendants, the surviving spouse shares with illegitimate children or, failing them, with collateral relatives (siblings, etc.), again under specific formulas.

V. The Surviving Spouse’s Rights

The surviving spouse usually has two distinct sources of rights:

As co-owner under the property regime (ACP/CPG/separation)
As a compulsory heir in succession

1. As co-owner

As explained earlier, in ACP or CPG:

The surviving spouse automatically owns their half of the community/conjugal property.
This share does not pass through succession; it is acquired by right of co-ownership, not by inheritance.

So if the only property is a conjugal house and lot:

Surviving spouse: already owns ½ as co-owner.
The remaining ½: is the estate portion to be inherited together with the children and other heirs.

2. As compulsory heir

The spouse also receives a legitime in the net estate (after marital property liquidation, debts, etc.). The spouse’s legitime depends on what other heirs exist.

Some key patterns (simplified examples, assuming the property in the estate is 100% decedent’s, not yet reduced by conjugal liquidation for illustration):

Surviving spouse + 1 legitimate child
- Legitime of the legitimate child: ½ of the estate
- Legitime of the surviving spouse: ¼ of the estate
- Free portion (disposable part): ¼ of the estate
Surviving spouse + 2 or more legitimate children
- ½ of the estate is reserved as legitime for all legitimate children, shared equally.
- The surviving spouse’s legitime is equal to the share of one legitimate child.
- Total legitimes usually consume at least ⅔ and often ¾ or so of the estate; the remainder is free portion.
Surviving spouse + legitimate parents (no legitimate children)
- Legitimate parents and spouse concur, both as compulsory heirs, sharing the estate in fixed proportions, with parents typically having a larger collective legitime than the spouse.
Surviving spouse + illegitimate children only
- The surviving spouse and illegitimate children also concur, with specific formulas.
- An illegitimate child’s legitime is generally a fraction of a legitimate child’s hypothetical share (conceptually “half” of a legitimate child’s legitime).
Surviving spouse alone (no descendants, parents, or illegitimate children)
- The spouse receives a substantial part of the estate as legitime and may share with collateral relatives depending on the presence of siblings, nephews/nieces, etc.

Important:

Separation in fact does not strip the surviving spouse of rights to inheritance.
However, a void marriage, bigamous marriage, or other invalid unions can dramatically change who is legally the “spouse” and who is just a cohabitant with possible property rights under different rules (e.g., co-ownership rules for unions in fact). This is one of the most legally complex and fact-sensitive areas in practice.

VI. Children and Descendants

1. Legitimate children and descendants

Legitimate children have one of the strongest legitimes.
If a legitimate child predeceases the parent, their children (the decedent’s grandchildren) inherit by right of representation in the proper line, taking collectively the share that would have gone to the predeceased parent.

Example:

Decedent leaves: surviving spouse, two living legitimate children, and two grandchildren from a third legitimate child who died earlier.
For legitime: the children and grandchildren (via representation) form one class, and the grandchildren split the share their parent would have taken.

2. Illegitimate children

Illegitimate children are compulsory heirs but with a smaller legitime than legitimate children.
They typically concur with legitimate children and with the surviving spouse.
They do not represent legitimate relatives in the ascending or collateral lines (representation rules for illegitimate descendants are narrower).

3. Adopted children

A legally adopted child is generally treated as a legitimate child of the adoptive parents for succession purposes.

VII. When the Decedent Died Overseas

“Overseas decedent” can mean:

A Filipino citizen residing abroad (OFW, immigrant, dual citizen, etc.), or
A foreign national who owns property in the Philippines.

Each raises distinct issues.

1. Filipino citizen who died abroad

As a rule:

Philippine law governs succession (legitime, compulsory heirs, order of intestate succession), regardless of residence.
A will made abroad by a Filipino may be valid in the Philippines if it complies either with:
- The formalities of Philippine law, or
- The formalities of the law of the place where it was executed (Philippine conflict-of-laws rules recognize such wills).

The fact that a foreign court issued a probate order does not automatically transfer Philippine land. Usually, the foreign probate decision must be recognized or the will must be probated locally in a Philippine court if it is to affect Philippine real property.

2. Foreign national who died abroad

Key points:

Succession is generally governed by the national law of the decedent, including who the heirs are and in what shares, to the extent recognized.
However, the Philippine Constitution and related laws restrict foreign acquisition of land, with an exception for hereditary succession.
- Foreigners may inherit Philippine land by hereditary succession (as an exception to the general prohibition on acquiring land), but they still cannot freely acquire land by sale, donation, etc.
- If land would end up owned in a way contrary to constitutional limits (e.g., via a foreign corporation’s excessive landholdings, or through devices violating public policy), courts may refuse registration or require divestment.
The registration of transfers in the Philippine Registry of Deeds must comply with Philippine law: supporting documents, authenticated foreign judgments, proof of applicable foreign law (which must be properly alleged and proven as a fact in court if relied upon).

VIII. Testate vs Intestate Succession

1. Testate succession (with a will)

A will can:

Distribute property subject to the legitime of compulsory heirs
Appoint an executor
Provide for particular devises (e.g., “I give my house in Quezon City to X”)
Include other dispositive provisions

However:

A will cannot defeat legitimes of compulsory heirs (e.g., to “disinherit” a child at whim), unless based on valid legal grounds and in proper form.
A will executed abroad must comply with formal requirements, and to affect Philippine land it must generally be probated in a Philippine court.
If the decedent’s national law has its own rules on legitime and compulsory heirs, there can be a conflict between foreign national law and Philippine public policy; Philippine courts will resolve this using conflict-of-laws principles and public policy limits.

2. Intestate succession (no valid will)

If the decedent dies without a valid will, Philippine intestate succession rules apply (if Philippine law is the applicable national law). In broad outline:

Legitimate descendants + surviving spouse
Legitimate parents/ascendants + surviving spouse
Illegitimate children + surviving spouse
Surviving spouse + collateral relatives (siblings, nephews, nieces, etc.)
In default of the above, the State.

Specific shares are fixed by the Civil Code; courts and practitioners usually compute these using the codal formulas.

IX. Effect on Titles and Actual Land Ownership

Having a theoretical “share” in the estate is not the same as having your name on the Transfer Certificate of Title (TCT / OCT). To implement the succession with respect to Philippine real property, heirs must usually:

Settle the estate (judicially or extrajudicially, depending on circumstances).
Pay estate taxes and obtain proof of payment or exemption.
Execute instruments of partition or adjudication (e.g., Deed of Extrajudicial Settlement, Deed of Adjudication, Deed of Partition).
Register those instruments, together with supporting documents, with the Registry of Deeds where the property is located, so that new titles can be issued or annotations made.

If some heirs live abroad, they may need:

Consularized or apostilled Special Powers of Attorney (SPAs) authorizing a representative in the Philippines to sign documents on their behalf.
Proper identification and proof of filiation or marriage (birth certificates, marriage certificates, etc.).

Where there are minor heirs, disputed shares, or complex foreign law issues, judicial settlement of the estate in a Philippine court is often necessary.

X. Donations, Advances, and Reductions

Succession to real property is also shaped by what the decedent did before death:

Donations inter vivos to some heirs (or third persons)
- In many cases, donations to compulsory heirs are treated as advances on legitime and must be collated (brought back into the computation of the estate) in order to preserve equality among heirs.
- Excessive or “inofficious” donations that impair the legitime may be subject to reduction upon action of the prejudiced heirs.
Sales to one child at a discount
- Transactions that are in reality disguised donations may be treated accordingly for purposes of collation and reduction.
Co-ownership with siblings or others
- If the decedent was already a co-owner of land (e.g., inherited from parents), the estate only includes the decedent’s undivided share in that co-owned property, which then passes to the decedent’s own heirs.

These issues often appear when other family members live abroad and only later discover that one heir has been given a particular property or was placed alone on the title.

XI. Practical Roadmap for Heirs of an Overseas Decedent

When someone who owns Philippine land dies abroad, a practical sequence (simplified) is:

Identify the decedent’s nationality and marital status.
- Was the decedent Filipino or foreign? Married or unmarried? Any prior marriages?
Determine the property regime.
- Was it ACP, CPG, or separation of property?
- How and when was the land acquired?
List all potential heirs.
- Surviving spouse? Legitimate children? Illegitimate children? Parents? Siblings?
- Gather documentary proof (PSA/NSO or foreign equivalents).
Establish whether there is a will.
- If yes, obtain the original or an authenticated copy.
- Consider probate or recognition in a Philippine court, especially when dealing with land.
Compute the estate and shares.
- Separate the community or conjugal share of the surviving spouse.
- Identify the net estate and apply the legitime rules to see what shares each heir is entitled to.
Address tax and procedural requirements.
- File the necessary estate tax return and pay estate tax, if applicable.
- Prepare and execute the appropriate settlement instruments (judicial or extrajudicial).
- Obtain consularized apostilled documents for overseas heirs.
Register transfers with the Registry of Deeds.
- Submit the deed of settlement, tax clearances, proof of death and relationships, and other requirements.
- Secure new titles or annotations showing the heirs’ names.

Throughout, disputes may arise about:

Validity of the marriage,
Status of children,
Validity or interpretation of the will,
Inclusion or exclusion of particular parcels of land.

These are resolved under Philippine substantive law, procedural rules, and, where relevant, proven foreign law.

XII. Conclusion

Succession to Philippine real property of an overseas decedent is rarely just a matter of “who is listed on the title” or “who lives there now.” It is governed by:

The national law of the decedent (for succession rules),
The law of the Philippines as the situs of the land (for registration, public policy limits, and land ownership restrictions),
The family property regime,
The rules on compulsory heirs and legitimes, and
Applicable tax and procedural requirements.

The surviving spouse usually has a double role—co-owner (under the property regime) and compulsory heir—while children (legitimate and illegitimate) and, in some cases, parents and collateral relatives all have defined rights.

Because a small factual change (e.g., a prior void marriage, an unacknowledged child, property acquired before marriage, foreign national law requirements) can radically shift the shares, real cases should always be evaluated individually with full documents.

If you’d like, you can describe a specific factual scenario (who died, who survived, what properties exist, nationality, marriage history), and I can walk through how the shares in the Philippine real property would likely be allocated under these principles.