Article 130 of the Family Code: Liquidating the conjugal partnership after a death
Status: In force
What does Article 130 say?
Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.
What does it mean in plain language?
Article 130 of the Family Code says that when a marriage under the conjugal partnership of gains ends by death, the conjugal property must be liquidated. This happens in the court case for the estate. If no such case is filed, the surviving spouse must liquidate it within six months from the death. After six months without liquidation, any sale or mortgage of conjugal property is void.
The conjugal partnership of gains is mainly the regime of couples married before the Family Code took effect without a prenup, and of couples who chose it in a marriage settlement. Couples under the absolute community follow the same rule in Article 103, with one year instead of six months.
How does it work in real life?
Rey and Luz: married in 1980
Rey and Luz married in 1980 without a prenup, so their regime is the conjugal partnership of gains. Luz dies in 2024 and no estate case is filed. Under Article 130, Rey must liquidate the conjugal property, in court or out of court, within six months from her death. If he sells a conjugal lot after the six months without liquidation, the law says the sale "shall be void".
Rey: a second marriage
Rey remarries a year later without having liquidated. Under the last paragraph of Article 130, his new marriage is governed by a mandatory regime of complete separation of property.
These are made-up examples to show how the rule works. They are not advice for any real case.
What does this mean in practice?
- Which regime applies depends on the date of the marriage and on any prenup. See Article 75 and the comparison absolute community vs conjugal partnership.
- While both spouses are alive, a sale or mortgage of conjugal property needs the other spouse's written consent or court authority (Article 124). See also can a spouse sell conjugal property without consent?
- Out-of-court settlement of the estate is explained in extrajudicial settlement of estate.
- For a question-and-answer guide, see selling conjugal property after a spouse dies.
What does Article 130 say?
Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same proceeding for the settlement of the estate of the deceased.
If no judicial settlement proceeding is instituted, the surviving spouse shall liquidate the conjugal partnership property either judicially or extra-judicially within six months from the death of the deceased spouse. If upon the lapse of the six-month period no liquidation is made, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.
Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.
How is the conjugal partnership liquidated?
Article 129 lists the steps. In short:
- An inventory lists separately the conjugal properties and the exclusive properties of each spouse.
- Amounts the partnership advanced for a spouse's personal debts are credited back to it, and each spouse is reimbursed for his or her exclusive funds or property used by the partnership.
- The debts and obligations of the partnership are paid out of the conjugal assets, and what remains of each spouse's exclusive properties is delivered to that spouse.
- The net remainder is the profit. It is divided equally between husband and wife, unless the marriage settlement provides a different division or a spouse's share was waived or forfeited.
What did the Supreme Court say about sales before liquidation?
Two decisions looked at sales by a surviving husband before the conjugal property was liquidated:
- In Heirs of Protacio Go, Sr. v. Servacio (2011), the Court said that a sale of a portion of conjugal property by the surviving spouse without the prior liquidation required by Article 130 "is not necessarily void" if that portion has not yet been allocated to another heir. It also said that the requirement of prior liquidation does not prejudice vested rights.
- In Domingo v. Spouses Molina (2016), the Court said the Article 130 rule did not apply because the Family Code is without prejudice to vested rights acquired under the Civil Code. The surviving spouse had a one-half undivided share in the properties pending liquidation.
In both cases the wife had died before the Family Code took effect (in 1987 and in 1968), so the Court applied the Civil Code and the rules on co-ownership. In the first case it also said that, for a conjugal partnership still existing when the Family Code took effect, a disposition after the partnership is dissolved must be made only after liquidation, or it is void. No decision read for this page applies Article 130 to a death after the Family Code took effect.
Which Supreme Court rulings are relevant?
Frequently asked questions
What happens to conjugal property when a spouse dies?
The conjugal partnership is liquidated in the court proceeding for the settlement of the deceased spouse's estate. If there is no such proceeding, the surviving spouse must liquidate it, in court or out of court, within six months from the death.
What if there is no liquidation within six months?
Article 130 says that after the six-month period without liquidation, any disposition or encumbrance involving the conjugal partnership property of the terminated marriage shall be void.
Can the surviving spouse sell conjugal property before liquidation?
Article 130 makes such a sale void once the six months pass without liquidation. In Heirs of Protacio Go, Sr. v. Servacio (2011) and Domingo v. Spouses Molina (2016), the Supreme Court upheld sales by a surviving husband, but in both cases the wife had died before the Family Code took effect, so vested rights under the Civil Code applied.
What if the surviving spouse remarries without liquidating?
Article 130 says a mandatory regime of complete separation of property then governs the property relations of the new marriage.
How is the conjugal partnership divided?
Article 129 sets the steps: an inventory, payment of debts and reimbursements, and then the net remainder, the profits, is divided equally between the spouses unless the marriage settlement provides otherwise or a share was waived or forfeited.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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