Dear PAO,

My husband passed away last year. We have been living our separate lives

for the past 13 years, but our marriage was never annulled. After our

separation, he lived with a woman with whom he had two children. Ever

since he started a new family, he never extended any financial assistance to

our son. When my husband passed away, I learned that all the assets that he

acquired while he was with his partner were solely under his name as he is

the sole breadwinner of his second family. His partner asked me if we can

divide my husband’s assets, wherein one-half will be given to us, the legal

family, while the other half will be given to his two other children. I’m not

very keen on sharing my husband’s assets because he neglected my son while

he was with them. My husband didn’t leave a will and I believe the properties

that he bought still form part of our conjugal assets because we never got an

annulment. If these are our conjugal assets since we didn’t sign a prenuptial

agreement before we got married, can I refuse to give anything to his

illegitimate family? If I cannot do so, how much should I give to his other

family?

Marlene

Dear Marlene,

You may not refuse to give the inheritance of your husband’s illegitimate

children. This is because Article 99 of the Family Code of the Philippines

states:

“Art. 99. The absolute community terminates:

(1) Upon the death of either spouse;

(2) When there is a decree of legal separation;

(3) When the marriage is annulled or declared void; or

(4) In case of judicial separation of property during the marriage under

Articles 134 to 138.” (Emphasis and underscoring supplied)

In other words, the properties co-owned by the spouses is evenly divided into

two upon the death of either one of the spouses. You retain your one-half

share of your conjugal assets, while the other half forms part of your

husband’s estate which must be distributed to his heirs in accordance with the

rules on succession. Succession as defined in Article 774 of the Civil Code of

the Philippines “is a mode of acquisition by virtue of which the property,

rights and obligations to the extent of the value of the inheritance, of a person

are transmitted through his death to another or others either by his will or by

general operation of law.”

Article 887 of the said law enumerates the deceased’s legitimate children, the

widow or widower and the illegitimate children as the deceased’s compulsory

heirs. Thus, the aforementioned individuals must be given their “legitimes”

or the “part of the testator’s property which he cannot dispose of because the

law has reserved it for certain heirs who are called compulsory heirs” (Article
886, Family Code of the Philippines). Thus, you, your child and your

husband’s two illegitimate children have legitimes from your husband’s

estate (1/2 of your conjugal property), which must be distributed in

accordance with the following rules provided in the Civil Code of the

Philippines:

“Article 888. The legitime of legitimate children and descendants consists of

one-half of the hereditary estate of the father and of the mother.

xxx

“Article 892. If only one legitimate child or descendant of the deceased

survives, the widow or widower shall be entitled to one-fourth of the

hereditary estate. xxx

xxx
“Article 895. The legitime of each of the acknowledged natural children and

each of the natural children by legal fiction shall consist of one-half of the

legitime of each of the legitimate children or descendants.

xxx

“The legitime of the illegitimate children shall be taken from the portion of

the estate at the free disposal of the testator, provided that in no case shall the

legitime of such illegitimate children exceed that free portion, and that the

legitime of the surviving spouse must first be fully satisfied.”

From the above quoted provision, your husband’s estate must be divided as

follows: (i) one-half of the estate will go to your only child in accordance to

Article 888; (ii) one-fourth of the estate will go to you, the surviving spouse,

in accordance with Article 892; and (iii) your husband’s illegitimate children

will each get one-eight portion of the estate in accordance with Article 895.

As a general rule, illegitimate children get one-half of the share of a

legitimate child. However, Article 895 of the Civil Code also specifically

provides that “the legitime of the surviving spouse must first be fully
satisfied” before the share of the illegitimate children can be given.

Considering that only one-fourth of the estate is left after you and your son’s

legitimes have been set aside, only the remaining one-fourth of the estate will

be divided between the two illegitimate children giving them each a share of

one-eight of the estate. Thus, when you next discuss how to divide the estate

left by your husband with his partner, you may propose the aforementioned

division which is in accordance with law.

We hope that we were able to answer your queries. 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.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office.

Questions for Chief Acosta may be sent to dearpao@www.manilatimes.net