Preterition vs Disinheritance
Quick answer
Preterition and disinheritance both leave an heir out of an inheritance, but in opposite ways. Preterition is a silent omission: a will says nothing about a child or parent who is a compulsory heir, and gives him nothing. Disinheritance is a deliberate act: the will expressly removes a compulsory heir for a cause the law allows. The effects are also different, so whether a will contains one or the other can change how the whole estate is divided.
| Aspect | Preterition | Disinheritance | Legal basis |
|---|---|---|---|
| What it is | The omission of a compulsory heir in the direct line from the will: the heir is not instituted, receives nothing, and is not expressly disinherited (Art. 854; Nuguid v. Nuguid, 1966; Morales v. Olondriz, 2016). | A provision in a will depriving a compulsory heir of his legitime for a cause expressly stated by law (Arts. 915, 916). | Article 854, Civil Code |
| Who can be affected | Only compulsory heirs in the direct line, such as children and parents. In Acain v. Intermediate Appellate Court (1987), the Court said Article 854 may not apply to a widow, who is a compulsory heir but not in the direct line. | Any compulsory heir, but only for the causes listed: Article 919 for children and descendants, Article 920 for parents and ascendants, Article 921 for a spouse. | Article 854, Civil Code, Article 919, Civil Code |
| Form | No act or stated reason: it is an omission. | Only through a will that states the legal cause (Art. 916). The Court repeated this rule in Ching v. Rodriguez (2011), a case where no will was mentioned. | |
| Must the omission be total? | Yes. If the heir received something, such as a legacy, a devise or an advance on the legitime, there is no preterition (Morales, 2016); the heir may instead ask that the legitime be completed (Art. 906). | Not applicable. | |
| Effect on the institution of heirs | Annulled; devises and legacies stay valid as long as they are not inofficious (Art. 854). With no devises or legacies, the result is total intestacy (Morales, 2016). | A valid disinheritance excludes the heir from the legitime. An invalid one annuls the institution of heirs only "insofar as it may prejudice the person disinherited" (Art. 918). | Article 854, Civil Code |
| Who must prove what | Not applicable. | If the disinherited heir denies the cause, the other heirs must prove it (Art. 917). | |
| Effect on the heir's own children | If the omitted heir dies before the testator, the institution stands, without prejudice to the right of representation (Art. 854). | The disinherited heir's children and descendants take his place as to the legitime (Art. 923). | Article 854, Civil Code |
| Reconciliation | Not applicable. | A later reconciliation ends the right to disinherit and makes any disinheritance already made ineffectual (Art. 922). |
What does the law say about preterition?
Article 854 of the Civil Code:
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: children and descendants, or parents and ascendants (Article 887).
- Institution of heir: the part of a will that names who inherits the estate.
- Devises and legacies: gifts of particular property made in a will.
- Inofficious: so large that they cut into the legitime of the compulsory heirs.
In Nuguid v. Nuguid (1966), the testatrix named her sister as universal heir and left out her parents. The Supreme Court described preterition as the omission of forced heirs "either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly disinherited", and affirmed the order that held the will a complete nullity, so the estate passed by intestacy. See preterition. In Morales v. Olondriz (2016), the Court added that "preterition is the complete and total omission of a compulsory heir from the testator's inheritance without the heir's express disinheritance".
What does the law say about disinheritance?
Disinheritance is possible only with a will and a legal cause:
Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified.
The causes are listed by heir: Article 919 for children and descendants, Article 920 for parents and ascendants, and Article 921 for a spouse. For children, they include an attempt against the life of the testator, a groundless accusation of a crime punished by six years or more, refusal without justifiable cause to support the parent, maltreatment of the testator by word or deed, and leading a dishonorable or disgraceful life. If the disinherited heir denies the cause, Article 917 puts the burden of proof on the other heirs. A later reconciliation ends the right to disinherit (Article 922). See disinheritance and can parents disinherit a child?
In Ching v. Rodriguez (2011), a complaint asked a court to disinherit an heir, but no will was ever mentioned. The Court said disinheritance "can be effected only through a will wherein the legal cause therefor shall be specified".
What happens when each one occurs?
| Situation | Effect |
|---|---|
| Preterition, and the will has devises or legacies | The institution of heirs is annulled; devises and legacies stand if not inofficious (Art. 854) |
| Preterition, and the will has no devises or legacies | Total intestacy (Morales, 2016) |
| The heir received something, but less than the legitime | Not preterition; the heir may ask that the legitime be completed (Art. 906) |
| Valid disinheritance | The heir loses the legitime; his children and descendants take his place as to the legitime (Art. 923) |
| Invalid disinheritance (no cause stated, cause not proved, or cause not in the Code) | The institution of heirs is annulled only insofar as it prejudices the disinherited heir; other provisions stand to the extent they do not impair the legitime (Art. 918) |
Nuguid (1966) explained the contrast: preterition annuls the institution of heir in full, while an ineffective disinheritance annuls it "only 'insofar as it may prejudice the person disinherited'". In Trinidad v. Trinidad (2023), children left only a unit their father did not own were found preterited, but the Court still said the legacies and devises "should be respected and given force and effect in so far as they are not inofficious or excessive".
How did Seangio v. Reyes apply both ideas?
In Seangio v. Reyes (2006), a father wrote, dated and signed a short document disinheriting his eldest son for being disrespectful to him and for using his name to borrow money. The trial court dismissed the probate case for preterition. The Supreme Court disagreed: the document met the formalities of a holographic will, it did not institute any heir to the exclusion of the other compulsory heirs, and so there was no preterition. The Court found that the stated reasons could be maltreatment under Article 919, and ordered the probate case to go on, saying that "Unless the will is probated, the disinheritance cannot be given effect." For how wills are proved in court, see wills and probate.
How does this work in real life?
These are made-up examples to show how the rules work. They are not advice for any real case.
Lorna's will leaves her whole estate to her niece and says nothing about her only son. The son is a compulsory heir in the direct line and received nothing, so this may be preterition. The institution of the niece is annulled; if the will had no devises or legacies, the estate passes as if there were no will.
Ramon's will says: "I disinherit my son Leo because he repeatedly insulted and hit me." This states a cause that may fall under maltreatment in Article 919. If Leo denies it, the other heirs must prove it. If it is proved, Leo's own children may take his place for the legitime.
Tess's will leaves her daughter a small piece of land and the rest of the estate to a friend. The daughter received something, so there is no preterition, but if the land is worth less than her legitime, she may ask that it be completed.
When do you need a lawyer?
Talk to a lawyer if you were left out of a will, if you were disinherited, or if you want to know how a will may be read before probate. Whether an omission is total, whether a cause of disinheritance is valid and proved, and what the estate is worth decide the shares, and these questions are settled in the probate court. If you cannot afford a lawyer, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.
Which provisions does this answer rest on?
Which Supreme Court rulings are relevant?
Frequently asked questions
What is the difference between preterition and disinheritance?
Preterition is the total omission of a compulsory heir in the direct line from a will, without an express disinheritance (Article 854). Disinheritance is a deliberate provision in a will that deprives a compulsory heir of his legitime for a cause stated by law (Articles 915 and 916).
What happens to a will if a child is left out?
If the omission is total, Article 854 annuls the institution of heirs, but devises and legacies remain valid as long as they are not inofficious. In Morales v. Olondriz (2016), the Supreme Court said that if the will has no devises or legacies, the preterition of a compulsory heir in the direct line results in total intestacy.
Is it preterition if the child received something in the will?
No. In Morales (2016), the Court said preterition requires a total omission: the heir did not receive any legacy, devise or advance on the legitime. An heir who received less than the legitime may ask for it to be completed under Article 906.
Can parents disinherit a child for any reason?
No. Article 916 requires a will that states the legal cause, and the cause must be one of those in Article 919, such as maltreatment of the testator by word or deed or refusal without justifiable cause to support the parent. If the child denies the cause, the other heirs must prove it (Article 917).
What happens if the disinheritance is invalid?
Under Article 918, a disinheritance without a stated cause, for a cause not proved, or for a cause not in the Code annuls the institution of heirs only insofar as it prejudices the person disinherited. Devises, legacies and other provisions stay valid to the extent they do not impair the legitime.
Can a court disinherit an heir without a will?
No. In Ching v. Rodriguez (2011), the Supreme Court said that under Article 916 disinheritance can be effected only through a will that specifies the legal cause.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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