Both son and mother compulsory heirs of deceased father


Dear PAO,
My aunt is a widow. She and my uncle were married for 20 years prior to his death in 2007. Now, she is dating her high school friend. My cousin and I have been talking and she is really concerned about her mother getting married again. If that happens, will it affect my cousin’s right over the properties left by her father? What can she do to protect her rights? Will she also need to change her surname? Your prompt response will be highly appreciated.
Warm regards,

Dear Amber,
Being a compulsory heir, your cousin has a right over a portion of the properties left by her deceased father. However, she must also take into consideration the fact that her mother also has a right over a portion of the said estate because she is also a compulsory heir (Article 887, New Civil Code of the Philippines).

Accordingly, your cousin may consider discussing with your aunt the possibility of settling the estate of your uncle in order for both of them to protect their rights over their respective shares in the estate. If your uncle has left no will and no debts and your cousin is already of legal age, or she is represented by her judicial or legal representative duly authorized for that purpose if she is still a minor, she and her mother may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument and file the same before the Office of the Register of Deeds (Section 1, Rule 74, Revised Rules of Court). They must file a bond with the Register of Deeds in an amount equivalent to the value of the personal property involved, if there be any, as certified to under oath by them and conditioned upon the payment of any just claim. Moreover, it is essential that the fact of extrajudicial settlement be published in a newspaper of general circulation once a week for three consecutive weeks (Section 1, Rule 74, Revised Rules of Court).

On the other hand, if your cousin and her mother could not agree on the division of the estate left by their decedent, they may proceed with the settlement of such estate through an ordinary action of partition before the court.

Insofar as her surname is concerned, your cousin may retain her surname because she is, after all, the legitimate child of her parents. Nevertheless, her surname may be changed to her mother’s second husband, assuming she contracts a subsequent marriage, if the latter adopts her and specifically petitions in court the change of your cousin’s surname in consonance with the provisions of A.M. No. 02-6-02-SC or the Rule on Domestic Adoption.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.


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