Transfer and Sale of Philippine Real Property After a Spouse’s Death
(A practitioner-oriented guide, updated to May 2025)
1. Why the regime of property matters first
| Property regime | Governing law | What happens at death |
|---|---|---|
| Absolute Community of Property (ACP) – default for marriages after 3 Aug 1988 | Family Code, Art. 75–144 | All assets acquired before & during the marriage (except exclusive property) form one mass estate. ½ belongs to surviving spouse outright; the other ½ is part of the decedent’s estate to be inherited. |
| Conjugal Partnership of Gains (CPG) – default for marriages before 3 Aug 1988 | Civil Code, Art. 116–175 | Property acquired during the marriage only is conjugal. Upon dissolution: (i) return each spouse’s exclusive property, (ii) net remainder split 50-50; the deceased’s ½ goes to his/her estate. |
| Separation of Property or Other Stipulation | Prenup (notarial + recorded in LCR & Registry of Deeds) | Each spouse keeps exclusive title. Only the decedent’s own property forms the estate. |
Always confirm the marriage date and any prenuptial agreement; this dictates whose signature is needed for transfer or sale.
2. Who owns what after one spouse dies? (Succession schematic)
- Surviving spouse – always a compulsory heir.
- Legitimate children & descendants – share the legitime with the spouse.
- Illegitimate children – entitled to ½ share of a legitimate child (FC Art. 895).
- Parents & ascendants – inherit only if there are no children/descendants.
- Collateral relatives – inherit (per Civil Code Art. 1003) only if no spouse, no descendants, no ascendants.
Rule of thumb: You cannot lawfully sell or transfer a decedent’s real property unless all compulsory heirs (or their duly appointed guardians/attorneys-in-fact) sign the deed or the probate court approves a partition.
3. Settling the estate (transfer of title)
| Path | When allowed | Key steps/documents | Typical timeline* |
|---|---|---|---|
| Extrajudicial Settlement (EJS) | All heirs are of age (or minors are represented) and there are no debts OR debts are fully paid (Rule 74, Sec. 1 ROC) | • Notarized “Deed of EJS with Waiver/Sale” • Publication in a newspaper of general circulation once a week for 3 consecutive weeks (Rule 74, Sec. 1) • BIR estate tax return and payment • Electronic Certificate Authorizing Registration (eCAR) • Transfer taxes (LGU) • Registration with Registry of Deeds (RD) |
3–9 months |
| Judicial Settlement (Probate/Intestate) | Contested estates, minors w/o guardians, presence of debts, will exists, or heirs cannot agree | • File Petition for Probate (if there is a will) or Intestate Settlement • Appoint Administrator/Executor • Publication & claims period • Inventory, appraisal, liquidation of debts • Project of Partition approved by court • BIR processing & eCAR • RD registration |
1–5 years (or more) |
*Indicative only; delays are common.
4. Estate-tax compliance (BIR essentials)
- File BIR Form 1801 within one (1) year from death (NIRC §90).
- Pay estate tax before transfer – currently 6 % of the net estate.
- Documents needed:
- Death certificate (PSA).
- TIN of estate and all heirs.
- Certified copy of title (TCT/OCT/CCT) & tax declaration.
- Zonal valuation/Sworn declaration of FMV.
- Affidavit of Self-Adjudication/EJS/Project of Partition.
- Valid ID of heirs; SPA if signing through attorney-in-fact.
Estate-Tax Amnesty Alert: RA 11956 (2023) extended the amnesty for deaths on or before 31 May 2022 until 14 June 2025. Rate: 6 % of net undeclared estate or of FMV if no declaration; file using BIR Form 2118-E.
5. Getting the title transferred
- Secure eCAR (green copy for RD, brown copy for LGU, blue for executor/admin).
- Pay transfer tax to the city/municipality (0.5–0.75 % of FMV or consideration).
- Register at RD:
- Original Title + owner’s duplicate.
- Deed (EJS, Deed of Sale, etc.) with notarized Acknowledgment.
- eCAR, tax clearances, transfer-tax receipt, documentary stamps.
- New TCT/OCT/CCT issued in the names of heirs or buyer.
6. Selling the property: timing & formalities
| Scenario | Who must sign the Deed of Absolute Sale (DAS)? | Taxes on sale |
|---|---|---|
| Heirs sell before partition | • All heirs (incl. surviving spouse) • Executor/Administrator if under probate and approved by court (Rule 89, Sec. 2) |
• Capital Gains Tax (CGT) – 6 % of higher of FMV or selling price • DST – 1.5 % of same base • LGU transfer tax |
| Heirs sell after partition | Whoever received the specific lot (now titled), plus spouse’s marital consent if required | Same as above |
| One heir buys out others (Simultaneous EJS-Sale) | • All heirs sign one instrument: “EJS with Deed of Sale”. • Treat CGT only on the portion transferred for value. |
CGT & DST on portion bought; estate tax on overall estate still due. |
Because title cannot pass until registered (Property Registration Decree, Sec. 53), insist on completing RD registration before releasing full payment.
7. Special considerations
- Minor heirs – Needs court-approved guardianship (FC Art. 225) or estate proceeding.
- Spousal consent – If regime is ACP/CPG & parcel is conjugal, the surviving spouse must co-sign any sale (FC Art. 124; Civil Code Art. 172).
- Foreign surviving spouse – May inherit land (no constitutional prohibition on succession), but cannot later sell to another foreigner.
- Agricultural lands – Observe CARP retention limits; DAR clearance required for lots over 5 ha or reclassification.
- Homestead or free patent land – Five-year restriction on sale (Public Land Act §118).
- Ocular defects in title – Register an Affidavit of Loss, Petition for Re-issuance, or Reconveyance suit, as needed, before estate settlement.
- Mortgage or liens – Survive the owner’s death; pay or get mortgagee’s conformity before partition/sale.
8. Criminal & civil liabilities for shortcuts
- Omission or false statements in the estate tax return: 50 % surcharge + 25 % interest, plus possible prosecution (NIRC §254–§255).
- Selling without minor’s authority – voidable and trustee liable for damages.
- Hiding heirs/assets – rescission or collation; felony of estafa if intent to defraud.
- Skipping publication of an EJS – EJS remains valid inter partes but void against third parties until publication is made (Rule 74 §1 last paragraph).
9. Practical timeline checklist
| Month | Milestone |
|---|---|
| 0–1 | Gather titles, tax decs, marital docs, death cert. |
| 1–3 | Determine property regime, list heirs, decide EJS vs. probate. |
| 3–6 | Pay estate tax, obtain eCAR; publish EJS. |
| 6–9 | Register partition; secure new titles. |
| 9–12+ | Market property; execute and register DAS. |
(Probate track: add 12–48 months.)
10. Key statutory & regulatory pin cites
- Civil Code of the Philippines (Arts. 776–1106 on succession; Arts. 105–175 on conjugal partnership).
- Family Code of 1987 (Arts. 75–88 ACP; Arts. 895–998 legitimes).
- Rule 74–91, Rules of Court (Settlement of Estates).
- Property Registration Decree (PD 1529) §53.
- National Internal Revenue Code (as amended by TRAIN Act & CREATE).
- Revenue Regulations 12-2018 & 17-2023 (estate-tax rules & amnesty).
- Republic Act 11956 (Estate-Tax Amnesty Extension).
- Land Registration Authority Circular No. 96-2019 (eCAR acceptance).
- DAR AO 1-2019 (Land transfer clearances).
Take-away
- Always identify the property regime and compulsory heirs first; this dictates who must sign and how much they own.
- Estate taxes and transfer taxes must be settled before the Registry of Deeds will issue a new title—even if heirs immediately sell.
- Use extrajudicial settlement only when debts are paid and heirs cooperate; otherwise file probate early to stop penalties.
- Secure minors’ and incapacitated heirs’ interests through guardianship or court approval to avoid voidable deeds.
- Do not skip publication, eCAR, and registration; an unregistered deed cannot defeat subsequent registrants in good faith.
Master these checkpoints and your post-death transfer or sale of Philippine real property will stay both efficient and legally bullet-proof.