Article 888 of the Civil Code: Legitime of legitimate children
Status: In force
What does Article 888 say?
The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.
What does it mean in plain language?
Article 888 of the Civil Code says that the legitime of legitimate children and descendants is one-half of the estate of each parent. That half is reserved by law for them, and a will cannot give it to anyone else. The parent may freely give away the other half, but only after the shares of the surviving spouse and any illegitimate children are covered.
The legitime is the part of the estate that the law reserves for the compulsory heirs (Article 886). Article 887 says who they are. Article 888 sets the first and largest share: the share of the legitimate children.
How does it work in real life?
Ana's will favors Ben
Ana dies with a will that names all her heirs and gives her son Ben as much as the law allows. Her net estate is ₱1,200,000. She leaves her husband Carlo and two legitimate children, Ben and Dina.
- The children's legitime is one-half: ₱600,000, or ₱300,000 each.
- Carlo's legitime equals one child's legitime: ₱300,000, taken from the free half.
- The free portion left is ₱300,000. The will can give that to Ben.
Result: Ben ₱600,000, Dina ₱300,000, Carlo ₱300,000. If the will had given Dina less than ₱300,000, she could demand the rest of her legitime (Article 906). If it had left her out completely, the separate rule on preterition in Article 854 would come into play; see below.
Rico and his only daughter
Rico leaves a net estate of ₱1,000,000, his wife Celia, and one legitimate daughter, Mia. Mia's legitime is one-half: ₱500,000. Celia's legitime is one-fourth: ₱250,000 (Article 892). The free portion left is ₱250,000.
Pedro, two children and Liza
Pedro, a widower, leaves a net estate of ₱1,200,000, two legitimate children and a daughter born outside marriage, Liza, whose filiation is proved. The legitimate children's legitime is ₱600,000, or ₱300,000 each. Liza's legitime is half of that, ₱150,000, taken from the free portion. The free portion left is ₱450,000.
These are made-up examples to show how the rule works. The amounts are invented. They are not advice for any real case.
What does this mean in practice?
- No will passes property unless it is proved and allowed (probated) in court under the Rules of Court (Article 838). See legitime shares in the Philippines.
- A parent cannot burden the legitime with any condition, substitution or other burden (Article 904). The testator cannot take it away "except in cases expressly specified by law", such as a valid disinheritance. See can parents disinherit a child?
- Leaving a compulsory heir in the direct line, such as a child, completely out of the will is called preterition. Article 854 says it "shall annul the institution of heir", while gifts of specific property (devises and legacies) stay valid as long as they do not cut into the legitimes. How this plays out in a real estate is a question for a lawyer.
- For each combination of heirs, see the legitime table.
- For the share of children born outside marriage, see can an illegitimate child inherit?
- Children usually prove they are legitimate heirs with PSA birth certificates. See the guide to a PSA birth certificate online.
- For free or low-cost legal help, see where to find legal help.
What does Article 888 say?
The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.
In plain words:
- Half for the children. One-half of the father's estate, and one-half of the mother's estate, is the legitime of their legitimate children and descendants. Each parent's estate is counted separately.
- The other half is "free", with limits. The parent may give it by will to anyone. But the legitimes of the surviving spouse and of illegitimate children come out of this half first.
Is the legitime divided equally among the children?
The half belongs to the legitimate children as a group. Article 888 itself does not say how it is split. The next articles (892 and 895) measure other shares against "the legitime of each of the legitimate children", and the worked examples on this page split the half equally. With two legitimate children, that makes each one's legitime one-fourth of the estate.
Grandchildren are "descendants". Under the rules on representation (Articles 970 and 981), a grandchild may take the place of a parent who died before the grandparent. See who inherits if there is no will?
What comes out of the other half?
The "free" half is not completely free when there is a surviving spouse or there are illegitimate children:
- The surviving spouse. If there is only one legitimate child, the spouse gets one-fourth of the estate. If there are two or more, the spouse gets a share equal to the legitime of each child. Article 892 says:
In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.
- Illegitimate children. Each one's legitime is one-half of the legitime of a legitimate child (Family Code Article 176, as amended by Republic Act No. 9255). Under Article 895, their legitime is also taken from the free portion. The total for all illegitimate children can never exceed the free portion, and the spouse's legitime must be fully satisfied first.
Only what is left after these legitimes can be given by will to anyone the parent chooses.
How is the estate computed?
Before the shares are figured out, two steps come first:
- Marital property is settled. When a married person dies, the community or conjugal partnership property is liquidated in the same proceeding for the settlement of the estate (Family Code Articles 103 and 130). This sorts out what belonged to the deceased before the shares are figured out.
- Debts are deducted and donations added back. Article 908 says the legitime is computed on the value of the property left at death, minus "all debts and charges", plus the value of the donations the deceased made that are subject to collation.
Frequently asked questions
What is the legitime of legitimate children in the Philippines?
One-half of the estate of each parent. Article 888 of the Civil Code reserves that half for the legitimate children and descendants, who share it among them.
Can a parent leave everything to one child?
No. The half reserved by Article 888 belongs to all the legitimate children as their legitime. A parent may give one child more only out of the free portion that is left after all the legitimes are covered. Leaving a child out of the will completely raises the separate rule on preterition in Article 854.
What can a parent do with the other half of the estate?
Article 888 says the parent may freely dispose of the remaining half, but subject to the rights of the illegitimate children and of the surviving spouse. Their legitimes are taken from that half, and only what is left is truly free.
How much does the surviving spouse get when there are children?
Under Article 892, if there is only one legitimate child, the spouse gets one-fourth of the estate. If there are two or more, the spouse gets a share equal to the legitime of each legitimate child. In both cases it comes from the free portion.
Is the legitime computed on everything the parent owned?
On the net estate. Article 908 says debts and charges are deducted from the property left at death, and then the value of donations subject to collation is added back.
What if a will gives a child less than the legitime?
Article 906 says a compulsory heir who was left less than his legitime may demand that it be fully satisfied.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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