The subject of my query springs from the problem between my father-in-law and his children of his first marriage. When my mother-in-law died, my father-in-law executed a waiver of his rights over a piece of property and donated the said property to his children. Years passed and my father-in-law contracted a second marriage and he wanted the property back because he liked to include his child from his second wife in the partition of the property. My questions are as follows:
1) What happens to the waiver of rights my father-in-law previously executed?
2) If the children of my father-in-law will not agree, is there any legal action that my father-in-law can avail of? If so, what are the possible remedies available to the children?
3) If one of the spouses died ahead of the other, how are the properties left by the deceased spouse divided among his heirs?
Dear Concerned Son-In-Law,
Assuming that your parents-in-law married each other before the Family Code has been effective, their property relations is the regime of conjugal partnership of gains. As in any other property relations between husband and wife, the conjugal partnership is terminated upon the death of either of the spouses. The manner of the liquidation of the conjugal partnership and the steps to be taken out in cases where the conjugal partnership of property is terminated upon the death of the other spouse is governed by Article 130 of the Family Code of the Philippines which says:
“Article 130. Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extrajudicially within six (6) months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.”
You failed to indicate in your letter whether there has been a settlement of the estate of your deceased mother-in-law. Remedies would thus vary according to the circumstances of your case, as will be discussed below.
Upon the death of your mother-in-law, the conjugal partnership is deemed terminated. Your father-in-law, as the surviving spouse has the duty to liquidate the conjugal partnership property in the proceedings for the settlement of the estate of your mother-in-law. If there was no proceeding for the settlement of the estate, the conjugal properties may be liquidated by the surviving spouse either judicially or extra-judicially within six (6) months from the death of your mother-in-law and the presumptive legitime shall be delivered to the children.
From our understanding of the facts that you stated in your query, it is clear that your father-in-law’s act of waiving his rights over a certain parcel of land in favor of his children is an act of liquidation of the conjugal properties.
In case the waiver of rights executed by your father-in-law is a product of an extra-judicial settlement of the estate of your deceased mother-in-law and the same was duly approved by the court, it becomes a judicial partition and is final and executory upon all parties who took part in the partition agreement. In other words, the said waiver of rights executed by your father-in-law has become final and executory and he can no longer repudiate or cancel the same.
However, if the waiver of rights has been agreed upon by the parties concerned without the proper court approval or if there was no settlement of the estate of your deceased mother-in-law, your father-in-law can recover his share of the property which he renounced but only insofar as to that part of his share to the conjugal partnership and his share to the estate of your mother-in-law.
The subsequent marriage of your father-in-law would not however affect his properties with respect to those acquired prior to his subsequent marriage. Your father-in-law’s child in his second marriage has no right to the estate of your mother-in-law.
The law provides that should the surviving spouse contract a subsequent marriage without compliance with the requirements of the law on the settlement of the estate of the deceased spouse, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. This is to protect the legitime of the children of the first marriage.
Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are compulsory or forced heirs. Article 887 of the Civil Code enumerates as compulsory heirs the following, to wit:
“1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
a. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;
b. The widow or widower;
c. Acknowledged natural children, and natural children by fiction;
d. Other illegitimate children.”
Premised on the foregoing provisions, the compulsory heirs of your mother-in-law are your father-in-law and her children. One half of the properties left by your mother-in-law pertain to the share of your father-in-law in the conjugal property. The other half shall be divided equally among the heirs including your father-in-law.
The share of your father-in-law in the estate of your mother-in-law is one-half if he has only one child or if he concurs as heir to two (2) or more children, his share is equal to the share of each of the legitimate children. In other words, if the father has two (2) or more children, the estate is divided by the total number of legitimate children plus the spouse. Spouse is considered as one share (Article 996, Civil Code).
Properties acquired by your father-in-law after the death of your mother-in-law are no longer considered as conjugal as the conjugal partnership of your parents-in-law was terminated upon the death of your mother-in-law. Nonetheless, your father-in-law’s children of the first and second marriages, upon his death, have the right to inherit from his estate.
We hope that we were able to address your concern. However, please be reminded that our opinion is based on your narration of facts and our appreciation of the same. The opinion may vary if other facts are added or elaborated.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilAatimes.net