Article 854 of the Civil Code: Preterition
Status: In force
What does Article 854 say?
The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.
What does it mean in plain language?
Article 854 of the Civil Code deals with a will that completely leaves out a compulsory heir in the direct line, such as a child or a parent. This omission is called preterition. Its effect is strong: the institution of heir in the will is annulled, and the omitted heir shares in the estate. Only devises and legacies (specific gifts in the will) survive, and only if they do not cut into the legitime.
How does it work in real life?
Tomas forgets his children
Tomas leaves a will giving "all my estate" to his second wife. He does not mention his three children and does not disinherit them. There are no specific gifts. Under Article 854, as Nuguid and Morales read it, the institution of the wife is annulled and the estate passes by intestacy, so the wife and the three children inherit under the rules on intestate succession.
Tomas adds a legacy
Same will, but Tomas also leaves his car to his driver. The legacy may survive insofar as it is not inofficious, as Trinidad holds.
Ana gets a small share
Ana's father leaves her a small parcel in his will, worth less than her legitime. She was not totally omitted, so this is not preterition. Under Article 906 she may ask that her legitime be completed.
What does this mean in practice?
- A will must first be allowed in probate before it takes effect. See holographic will requirements and Article 810.
- The size of each heir's legitime is explained in Article 888, legitime shares and the legitime shares table.
- For disinheritance, see can parents disinherit a child?
- See also the comparison preterition vs disinheritance and the meaning of preterition.
- For free or low-cost legal help, see where to find legal help.
What does Article 854 say?
The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.
Some terms:
- Compulsory heirs in the direct line: descendants (children, grandchildren) and ascendants (parents, grandparents) who are entitled by law to a legitime.
- Institution of heir: the part of the will that names who inherits the estate, or a share of it.
- Devises and legacies: gifts of specific things in a will (a devise is real property; a legacy is personal property).
- Inofficious: so large that it impairs the legitime of a compulsory heir.
When is a heir "preterited"?
In Morales v. Olondriz (2016), the Supreme Court said preterition is the omission of a compulsory heir from the will, either because he is not named or, although named, he is neither instituted as an heir nor assigned any part of the estate, without being expressly disinherited. The omission must be total: the heir received no legacy, devise or advance on the legitime. In that case, the decedent's illegitimate son was left out, and the Court called him a compulsory heir in the direct line.
A heir who receives something, but less than the legitime, is not preterited. Article 906 gives that heir a different remedy:
Any compulsory heir to whom the testator has left by any title less than the legitime belonging to him may demand that the same be fully satisfied.
What happens to the will?
- Total intestacy when the will only names heirs. In Nuguid v. Nuguid (1966), a woman's will named her sister as universal heir and left out her parents. The Court said the annulment under Article 854 is in toto (total), unless the will also contains devises or legacies. The estate then passes as if there were no will. Morales (2016) said the same: without devises or legacies, preterition of a compulsory heir in the direct line results in total intestacy.
- Devises and legacies survive. In Trinidad v. Trinidad (2023), the children of the first marriage were preterited because the only property left to them was a unit their father did not own. The Court said the legacies and devises in the will should still be respected insofar as they are not inofficious, and returned the case to the trial court.
- The spouse is not in the direct line. In Acain v. Intermediate Appellate Court (1987), the Court said Article 854 may not apply to the widow, because she does not ascend or descend from the testator, although she is a compulsory heir.
Is preterition the same as disinheritance?
No. Disinheritance is a deliberate act: the will expressly deprives a compulsory heir of the legitime for a cause stated by law (Article 919 lists the causes for children). Preterition is an omission. If a disinheritance is invalid, Article 918 annuls the institution of heirs only "insofar as it may prejudice the person disinherited", a narrower effect, as Nuguid pointed out.
In Seangio v. Reyes (2006), a father's handwritten document disinherited his eldest son and mentioned a daughter only as a witness. The Court held there was no preterition, because the document did not institute any heir to the exclusion of the others. It ordered the document to be heard in probate as a holographic will.
Which Supreme Court rulings are relevant?
Frequently asked questions
What is preterition?
It is the omission in a will of a compulsory heir in the direct line, such as a child or a parent. In Morales v. Olondriz (2016), the Court described it as the complete and total omission of a compulsory heir from the testator's inheritance without the heir's express disinheritance.
What is the effect of preterition?
Article 854 says it annuls the institution of heir, but the devises and legacies remain valid insofar as they are not inofficious. In Nuguid v. Nuguid (1966), the Court said this annulment is total unless the will also has devises or legacies.
Is it preterition if the child received something in the will?
No. In Morales v. Olondriz (2016), the Court said the omission must be total: the heir did not receive any legacy, devise or advance on the legitime. An heir who got less than the legitime may ask for completion under Article 906.
Does preterition apply to a surviving spouse left out of the will?
In Acain v. Intermediate Appellate Court (1987), the Court said Article 854 may not apply to the widow because she does not ascend or descend from the testator, although she is a compulsory heir.
Can an illegitimate child be preterited?
Yes. In Morales v. Olondriz (2016), the omitted heir was the decedent's illegitimate son, whom the Court called a compulsory heir in the direct line.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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