LA MEMORIA DE LA CULTURA ESPAÑOLA
3.1. LA VIDA COTIDIANA EN LA COLONIA
I. Causes for Legal or Intestate Succession II. The Intestate or Legal Heirs
III. Fundamental Underlying Principles in Legal or Intestate Succession
IV. Relationship
V. The right of Representation
VI. Order of Legal or Intestate Succession VII. Concurrence in Legal or Intestate Succession VIII. Outline of Intestate Shares
IX. Order of Concurrence in the case of an Adopted Child
The Civil Code does not state a definition of legal or intestate succession. Art. 960 only enumerates the instances when legal succession takes place. This enumeration is not exclusive, as there are other instances where intestacy may occur, as listed below.
I. Causes for Legal or Intestate Succession
1. If a person dies without a will (Art 960[1]) 2. If a person dies with a void will (Art 960[1]) 3. If a person dies with a will which has
subsequently lost its validity (Art 960[1]) 4. When the will does not institute an heir (Art
960[2])
5. When the will does not dispose of all the property belonging to the testator. Legal succession shall take place only with respect to the property which the testator has not disposed (Art 960[2])
6. If the suspensive condition attached to the institution of the heir does not happen or is not fulfilled (Art 960[3])
7. If the heir dies before the testator (Art 960[3])
8. If the heir repudiates the inheritance, there being no substitution, and no right of accretion takes place (Art 960[3])
9. When the heir instituted is incapable of succeeding, except in cases provided in the Civil Code (Art 960[4])
10. Preterition – Intestacy may be total or partial depending on whether or not there are legacies or devises (Balane, p.426)
11. Upon the expiration of a resolutory term attached to the institution of heir (Balane, p.426)
12. Upon fulfillment if a resolutory condition attached to the institution of heir, rendering the will ineffective (Balane, p.426)
Note: In all cases where there has been an institution of heirs, follow the I.S.R.A.I order:
a. If the Institution fails, Substitution occurs.
b. If there is no substitute, the right of Representation applies in the direct descending line to the legitime if the vacancy is caused by predecease, incapacity, or disinheritance.
c. The right of Accretion applies to the free portion when the requisites in Art.
1016 are present.
d. If there is no substitute, and the right of Representation or Accretion are not proper, the rules on Intestate succession shall apply.
II. The Intestate or Legal Heirs
1. Relativesa. Legitimate ascendants b. Illegitimate parents c. Legitimate children d. Illegitimate children e. Surviving Spouse
f. Brothers, sisters, nephews and nieces (BSNN)
g. Other collateral relatives 2. Surviving spouse
3. State (through escheat proceedings)
III. Fundamental Underlying Principles in Legal or Intestate Succession
Rule of Preference between Lines—
1. Those in the direct descending line shall exclude those in the direct ascending and collateral lines;
2. Those in the direct ascending line shall, in turn, exclude those in the collateral line.
Rule of Proximity—
The relative nearest in degree excludes the farther one. (Art. 962, par.1 CC), saving the right of representation when it properly takes place.
Rule of Equal Division—
1. The relatives who are in the same degree shall inherit in equal shares. (Arts. 962 par.2, 987 and 1006, CC)
2. Exceptions: (Balane pp.427-428) a. the rule of preference of lines
b. the distinction between legitimate and illegitimate filiation (the ratio under present law is 2:1) (Art 983, in relation to Article 895 as amended by Article 176 FC)
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c. the rule of division by line in the ascending line Article 987 par.2)
d. the distinction between full-blood and half-blood relationship among brothers and sisters, as well as nephews and nieces. (Art 1006 and 1008)
e. representation
Rule of Barrier between the legitimate family and the illegitimate family (the iron-curtain rule)—
The illegitimate family cannot inherit by intestate succession from the legitimate family and vice-versa. (Art. 992, CC)
Rule of Double Share for full blood collaterals—
When full and half-blood brothers or sisters, nephews or nieces, survive, the full blood shall take a portion in the inheritance double that of the half-blood. (Arts. 895 and 983, CC)
Note:
1. If one of the legitimate ascendants, illegitimate parents, legitimate children or illegitimate children survives, the brother, sisters, nephews, and nieces (BSNN) are excluded
2. If one of the legitimate ascendants, illegitimate parents, legitimate children, illegitimate children or surviving spouse survives, the other collateral relatives and the state are excluded.
3. If any of the heirs concur in legitimes, then they also concur in intestacy.
IV. Relationship (Arts. 963-969, CC)
Number of generations determines proximity. (Art 963)
Each generation forms a degree. (Art 963)
A series of degrees forms a line. (Art 964 par.1)
A line may either be direct or collateral. (Art 964 par.1)
A direct line is that constituted by the series of degrees among ascendants and descendants (ascending and descending).
(Art 964 par.2)
A collateral line is that constituted by the series of degrees among persons who are not ascendants or descendants, but who come from a common ancestor. (Art 964 par.3)
Full blood – same father and mother. (Art 967 par.1)
Half-blood – only one of either parent is the same. (Art 967 par.2)
In adoption, the legal filiation is personal and exists only between the adopter and the adopted. The adopted is deemed a legitimate child of the adopter, but still remains as an intestate heir of his natural parents and other blood relatives. (Art. 189, FC)
V. The Right of Representation (Art. 970, CC)
(Asked in ’77, ’82, ’85, ’88, ’92, ’97, and ’07)
It is a right created by fiction of law;
By virtue of which the representative is raised to the place and degree of the person represented;
And acquires the rights which the latter would have if he were living or if he would have inherited.
Important Concepts—
Representation is only allowed with respect to inheritance conferred by law (i.e., as to legitimes and intestate shares [ Art 923, CC]), in cases of incapacity, disinheritance, and predecease of an heir.
There is no representation in voluntary succession (by will). (Art 856, CC)
There is also no representation in repudiation. Note, however that a renouncer can represent, but cannot be represented.
Representation takes place ad infinitum in the direct descending line but never in the direct ascending line. ( Art 972, CC)
In the collateral line, representation takes place only in favor of the children of the brothers or sisters (i.e., nephews and nieces) whether of the full or half-blood (Art.
972, CC) and only if they concur with at least one uncle or aunt. In this case, they share in the inheritance per stirpes. If the children survive alone, they inherit in their own right and share in equal proportions or per capita. (Art. 975)
Inheritance per stirpes means that the representative/s shall not inherit more than what the person they represent would inherit, if he were living or could inherit.
(Art.975, CC)
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The representative is called to the succession by the law and not by the person represented. The representative does not succeed the person represented but the one whom the person represented would have succeeded. (Art. 971, CC)
General Rule—
Grandchildren inherit from the grandparents by right of representation, if proper.
Exception—
Whenever all the children repudiate, the grandchildren inherit in their own right because representation is not proper. (Art 969, CC)
Right of representation in the collateral line is only possible in INTESTATE succession.
It cannot take place in testamentary succession.
In determining whether or not representation is proper, apply the DOUBLE HEIRSHIP TEST (Art. 973, CC): the representative
must be a legal heir of both the person he is representing and the decedent.
Thus, illegitimate children can represent illegitimate children parents in inheritance from illegitimate grandparents. (*Rationale:
Iron-curtain rule under Art. 992, CC)
On the other hand, a legitimate child may represent either a legitimate or illegitimate parent in the inheritance of either a legitimate or illegitimate grandparents. (Arts.
902, 989,990)
Representation in Adoption (Asked in ’94,
’04, and ’07)—
If the adopting parent should die before the adopted child, the later cannot represent the former in the inheritance of the parents or ascendants of the adopter. The adopted child is not related to the deceased in that case, because filiation created by fiction of law is exclusively between the adopter and the adopted. (TOLENTINO pp. 448-449)
VI. Order of Legal or Intestate Succession
(Asked in ’77, ’78, ’97, ’98, ’99, ’00, ’06, and ’08)Decedent is a Legitimate Child Decedent is an Illegitimate Child Decedent is an Adopted Child
1 LC and
Legitimate descendants
LC and
Legitimate descendants
LC and Legitimate descendants
2 LP and
Legitimate ascendants
ILC and Illegitimate descendants
ILC and Illegitimate descendants
3 ILC and
Illegitimate descendants
ILP LP or ILP and
Legitimate ascendants, Adoptive parents
4 SS SS SS
5 Legitimate siblings, Nephews,
Nieces
Illegitimate siblings, Nephews,
Nieces
Siblings, Nephews,
Nieces 6 Legitimate collateral relatives within
the 5thdegree
State State
7 State
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VII. Concurrence in Legal or Intestate Succession
INTESTATE HEIRS Excludes Excluded By Concurs With
LC and Legitimate descendants
Ascendants, Collaterals and
State
No one SS and
ILC ILC
and Descendants
ILP, Collaterals and
State
No one SS
LC and LP LP and
Legitimate ascendants
Collaterals and State
LC ILC and
SS
ILP Collaterals and
State
LC and ILC SS
SS Collaterals other than
siblings, nephews and nieces
No one LC, ILC, LP, ILP
Siblings Nephews
Nieces Siblings,
Nephews Nieces
All other collaterals and State
LC, ILC, LP, ILP SS
Other collaterals within 5th degree
Collateral more remote in degree and
State
LC, ILC, LP, ILP and SS
Collaterals in the same degree
State No one Everyone No one
VIII. Outline of Intestate Shares
(Asked in ’76, ’79, ’92, ’03, ’04, ’06, and ’08) 1. Legitimate children onlya. Divide entire estate equally among all legitimate children (Art. 979, CC)
b. Legitimate children include an adopted child.
2. Legitimate children and Illegitimate children
Divide entire estate such that each illegitimate child gets ½ of what a legitimate child gets (Art. 983, CC and Art. 176, FC) 3. Legitimate children and surviving spouse
a. Divide entire estate equally between the legitimate children and the surviving spouse, the latter deemed as one child.
The same rule holds where there is only one child.
b. “Children” as used in Art. 996 is interpreted to include a situation where there is only one child.
4. Legitimate children. Surviving spouse, and Illegitimate children
Divide the entire estate such that the surviving spouse is deemed one legitimate child and each illegitimate child getting ½ of what the legitimate child gets (Art. 996, CC and Art. 176, FC)
5. Legitimate parents only
Divide the entire estate equally. (Art. 985, CC)
6. Legitimate ascendants only (excluding parents)
Divide the entire estate equally but with the observance of the rule of division by line (Art. 987, CC)
7. Legitimate parents and illegitimate children
Legitimate parents get ½ of the estate, illegitimate children get the other ½ (Art.
991,CC)
8. Legitimate parents and surviving spouse Legitimate parents get ½ of the estate; The surviving spouse gets the other ½ (Art.
997,CC)
9. Legitimate parents, surviving spouse and illegitimate children
Legitimate parents get ½ of the estate;
surviving spouse and the illegitimate child each get ¼ each, the latter to share among themselves if more than one. (Art. 1000, CC)
10. Illegitimate children only
Divide the entire estate equally. (Art. 988, CC)
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11. Illegitimate children and surviving spouse
Illegitimate children get ½ of the estate; the surviving spouse gets the other ½. (Art. 998, CC)
12. Surviving spouse only
Entire estate goes to the surviving spouse.
(Art. 994/995, CC)
13. Surviving spouse and illegitimate parents Illegitimate parents get ½ and the spouse gets the other ½ (by analogy with Art. 997, CC)
14. Surviving spouse and legitimate brothers and sisters, nephews and nieces
Surviving spouse gets ½ of the estate, while the rest gets the other ½ with the nephews and nieces inheriting by representation if proper. (Art. 1001, CC)
15. Surviving spouse and illegitimate brothers and sisters, nephews and nieces
Surviving spouse gets ½ of the estate while the rest gets the other ½ with the nephews and nieces inheriting by representation, if proper; Note that all the other relatives should be “illegitimate” because of the iron-curtain rule. (Art. 994,CC)
16. Illegitimate parents only
Entire estate goes to the illegitimate parents.
(Art 993, CC)
17. Illegitimate parents and children of any kind (whether legitimate or illegitimate child)
Illegitimate parents are excluded and do not inherit; For the rule on the respective shares of the children, see numbers 1, 2 or 10, whichever is applicable.
18. Legitimate brothers and sisters only Divide the entire estate such that full-blood brothers/sisters gets a share double the amount of a half-blood brother or sister. (Art.
1004 and 1006, CC)
19. Legitimate brothers and sisters, nephews and nieces
Divide the entire estate observing the 2 is to 1 ratio for full and half blood relationships with respect to the brothers and sisters, with the nephews and nieces inheriting by representation, if proper. (Art. 1005 & 1008, CC)
20. Nephews and nieces only
Divide the entire estate per capita, observing the 2 is to 1 ratio. (Arts. 975 and 1008, CC) 21. Other collaterals (Arts. 1009 and 1010)
a. Divide entire estate per capita.
b. Collateral relatives must be with the 5th degree of consanguinity.
c. Note: the nearer relative excludes the more remote relatives.
22. State
If there are no other intestate heirs, the State inherits the entire estate through escheat proceedings. (Art. 1011, CC)
IX. Order of Concurrence in the Case of an Adopted Child (Art, 190, FC)
(Asked in ’79, ’86, ’04 and ’07)
SURVIVORS SHARE
LC, ILC, SS As in the case of ordinary intestate succession LP or ascendants or ILP
Adopter
½
½ LP or ascendants or ILP
or Adopter SS
½
½ LP or ascendants
Adopter
ILC or descendants
½
½ LP or ascendants
Adopter SS
ILC or descendants
1/3 1/3 1/3
Adopter alone Entire estate
Collateral blood relatives As in the case of ordinary intestate succession
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