No last will? Rules on intestacy apply

Persida Acosta

Persida Acosta

Dear PAO,
My father remarried after my mother died a couple of years ago. His second marriage bore him children. Sadly, my father also passed away, leaving several pieces of property.  My question pertains to these assets, which were all purchased after my mother died.  I have a good relationship with his new family and we want to settle the matter expeditiously.  We, however, have no idea on how the pieces of property should be divided among us. Can you please advise us?

Dear Portia,
In our jurisdiction, a person may control the disposition of his estate upon his death subject to limitations imposed by law.  This is done by making a last will and testament.  If, however, a person dies without leaving a will, or he leaves a will that is void, incompletely disposes of whole estate or cannot be executed in its entirety, the rules on intestacy would apply (Art. 960, Civil Code).  These rules contain the set of laws concerning division of a person’s estate that the State approximates as the presumed will of the decedent (In the Matter of the Intestate Estate of Cristina Aguinaldo-Suntay, vs. Cojuangco-Suntay, 621 SCRA 142).

In your case, the rules on intestacy may likely apply considering that you made no mention of any last will and testament.  If this is the case, the rules on intestacy state that “the children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares” (Art. 980, Civil Code). There will be no difference whether the child is from a prior or subsequent marriage because the rules also provide that legitimate children succeed the parents without distinction as to sex or age, and even if they should come from different marriages (Art. 979, Civil Code). With respect to the legal spouse, the rules add that “the surviving spouse has… the same share as that of each of the children” (Art. 996, Civil Code). Reading the two rules together, this means that each legitimate child and the spouse shall receive equal shares.

Yet, this does not mean that all of the pieces of property would automatically be divided equally.  It is still necessary to determine whether a certain property is an exclusive property of your father or if it forms part of the spousal property regime he shares with his second spouse.

According to your letter, the assets in question were purchased after the death of your mother. Bearing this in mind, Article 92 (3) of the Family Code is instructive. It states that pieces of property acquired before the marriage by a spouse who has legitimate descendants by a former marriage, including its fruits and income are excluded from the community property. Such assets remain exclusively owned by the owner-spouse and are not brought into the community property. This law may apply to your case considering that you are a legitimate descendant of your father from a former marriage.  Hence, you need to segregate between the assets that were bought before your father contracted a second marriage and those which were bought after.  The former are the exclusive pieces of property of your father while the latter are community property of your father and his second spouse. Only the exclusive ones and the half-portion share of your father in the community property will form part of his estate, which will be divided equally between you, your half-siblings and your stepmother in accordance with the rules on intestacy.

We hope this opinion enlightened you on the matter.  Please take note that this opinion is based on the facts you narrated and our appreciation of the same.  Our opinion may vary should actual facts and circumstances change.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to


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