I have a daughter from my first marriage. My wife died when my daughter was only 3 years old. I remarried and had 5 children. How would I split my property fairly? Do I have property accumulated from my first marriage?
Dear Mr. Rey,
The property regime of spouses is terminated by death of one of them (Article 99, Family Code). If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the community property extrajudicially within six (6) months from the death of the deceased spouse. In the said settlement, the net remainder of the property of the spouses shall be divided equally between them after liquidation and payment of debts and obligations (Article 102, Family Code).
You mentioned that you had a previous marriage and your wife died, leaving you a daughter. Based from the foregoing, the net remainder of your property with your wife shall be equally distributed to both of you as follows: one half shall belong to you and the other half to the estate of your wife, which shall be distributed equally to you and your daughter as legal heirs, in the absence of a last will and testament.
However, you failed to mention in your letter if a settlement of the properties of the first marriage has been made either judicially or extrajudicially. If settlement has been made, your share in the net remainder of the properties from the first marriage shall form part of the absolute community of the second marriage, wherein your second wife shall have an equal right thereto, except for that portion which you inherited from your wife because this is considered to be your separate and exclusive property (Article 91 and Article 92, Family Code). In the distribution of your estate, you may divide your properties, which consist of your share in the community property of the second marriage and separate or exclusive properties, equally to all children and your wife following the provision of Article 996 of the Civil Code. Your daughter from your first marriage has an equal right to your estate since she is also your legitimate child.
If you fail to make a settlement of the properties from your first marriage, the properties which your heirs may acquire after your death will vary. It is provided under Article 103 of the Family Code that “should the surviving spouse contract a subsequent marriage without settlement, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.” Accordingly, your estate shall consist of your share and inheritance from the first marriage and those properties purchased with your exclusive money during the second marriage.
Please be reminded that the above legal opinion is solely based on our appreciation of the problem that you have stated. The opinion may vary when other facts are elaborated therein.