Subdividing the Estate amongst the Heirs

By Balita | April 16, 2010

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Q. Please help me see my way through the following dilemma:

1. My father died intestate, how are we to divide the properties left behind with our mother and four
siblings?

2. Another concern is that my brother has been estranged from his legal wife for 30 years. He got a
live-in-partner and adopted a son some 25 years ago.

He died recently. Is his estranged wife entitled to his properties left behind, how about the live-in-
partner and the adopted son? There have been no adoption papers for his son. Thank you for your
assistance to this regard. FT.

Ans: Under the Philippine law on Intestate succession, only compulsory heirs of the deceased are
entitled to inherit from his or her estate. Other relatives may inherit only upon default or absence of
the compulsory heirs.

Under the Civil Code of the Philippines, compulsory heirs include the surviving spouse and the
children whether legitimate or illegitimate. When we speak of intestate succession, it is understood
that the deceased or decedent left no WILL upon his/her death.

In intestate succession, the estate of the deceased may be partitioned or subdivided either by:

1) Extrajudicial Settlement of Estate- Under this scheme the decedent do not have unpaid creditors
and minor children and that all the heirs are in harmony as to the manner in which the property is to
be subdivided or partitioned. And without going to the court, the heirs agreed amongst them to
adjudicate the estate by means of instruments known “Extrajudicial Settlement of Estate” duly signed
and notarized and have it published in the newspaper of general circulation for at least three (3)
consecutive weeks. And of course to pay the required estate tax and compliance of procedure and
administrative matters with the concerned government agencies.

– Under the law, the estate is divided by first liquidating the conjugal/matrimonial property. The
legitimate spouse gets ½ portion of her share of the conjugal/matrimonial property and the remaining
½ which constitute the estate shall be divided equally amongst the heirs including the surviving
spouse. Thus, for instance if there are 3 children, the estate shall be divided into four(4) share, with
the surviving spouse getting one(1) share or the same share that each child inherits. – In case the
child is illegitimate, his/her share is equivalent to only ½ of the shares of the legitimate child. Which
are ¼ shares only.

2) Judicial Settlement of Estate- If the deceased left no will but there are creditors or claimants or an
heir is minor or suffering from incapacity to act and/or the heirs cannot agree amongst themselves in
the manner or partition or distribution of the estate, the settlement of estate shall be by means of
Judicial Settlement. This means that the heirs or creditor(s) concerned have to file a petition in the
Court of Law for the settlement of estate.

Unless there is a third party claimant, this scheme should be avoided as much as possible. Aside
from being adversarial, this is also costly as parties will have to engage the services of lawyers. The
process could take years to be resolved. The sharing of the heirs is the same as what is mentioned
above, less the provisions for the payments of creditors, if any.
As to your number two (2) question. As to the estranged wife of your deceased brother , for as long
as they are legally married and that marriage was not annulled , she is still considered as
compulsory heirs of the deceased and as such entitled to inherit from her husband .

As to the adopted son, if the adoption is legal in the sense that the adoption was authorized by the
court, then the adopted son is considered as a compulsory heir. However, if the birth certificate of
the “adopted son” would show that the father is your deceased brother, and during the lifetime of
your deceased brother, the status of this “adopted son” was never questioned him or any third party,
and then he could be considered as a compulsory heir.

As to the live-in partner of the deceased, she is not entitled to inherit from the estate as she is not
considered as a spouse under the law.