Preterition: Meaning
Quick answer
Preterition is the omission from a will of a compulsory heir in the direct line, such as a child or a parent, who is neither given anything nor expressly disinherited. Under Article 854 of the Civil Code, preterition annuls the institution of heir. Devises and legacies in the will stay valid insofar as they do not cut into the legitime. If the will has no devises or legacies, the whole estate passes as if there were no will.
Also called: Omission of a compulsory heir, Preterition of an heir
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.
The second paragraph adds that if the omitted heirs die before the testator, the institution of heir takes effect, without prejudice to the right of representation. See Article 854.
"Institution of heir" means naming in the will the persons who will inherit the estate as heirs. Devises and legacies are gifts of specific property made in the will, separate from the naming of heirs.
Who can be preterited?
Only compulsory heirs in the direct line: children and descendants, and parents and ascendants (see Article 887). In Morales v. Olondriz (2016), the omitted heir was the decedent's illegitimate son, and the Supreme Court said he is "a compulsory heir in the direct line."
The surviving spouse is a compulsory heir but not in the direct line. In Acain v. Intermediate Appellate Court (1987), the Court said Article 854 "may not apply" to the widow for that reason.
When is the omission "total"?
In Morales (2016), the Court said: "Preterition requires that the omission is total, meaning the heir did not also receive any legacies, devises, or advances on his legitime." If the heir received something, even less than the legitime, there is no preterition. The heir may instead ask that the legitime be completed:
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?
In Nuguid v. Nuguid (1966), a testatrix named her sister as sole heir and left out her parents. The Court said the annulment of the institution of heir "is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies." The will was a complete nullity and the estate passed by intestate succession.
In Morales (2016), the Court said that "if a will does not institute any devisees or legatees, the preterition of a compulsory heir in the direct line will result in total intestacy."
In Trinidad v. Trinidad (2023), the children of a first marriage were preterited, but the will also contained devises and legacies. The Court said these "should be respected and given force and effect in so far as they are not inofficious or excessive", and sent the probate case back to the trial court.
How is preterition different from disinheritance?
Disinheritance is an express act: the will names the heir and states a legal cause for taking away the legitime (Articles 915 and 916). Preterition is a silent omission. In Nuguid, the Court contrasted the two: an ineffective disinheritance annuls the institution of heirs only "insofar as it may prejudice the person disinherited" (Article 918), a limit that the law does not write into preterition.
In Seangio v. Reyes (2006), a document disinheriting one son did not institute any heir, so the Court found no preterition and ordered the will to go through probate.
Example
Made-up illustration: Tomas leaves a will giving his whole estate to his second wife. He does not mention his three children from his first marriage and does not disinherit them. The will has no devises or legacies. The children are compulsory heirs in the direct line who were totally omitted, so the institution of the wife as heir is annulled and the estate is divided under the rules on intestate succession. If Tomas had given each child even a small lot, there would be no preterition; a child who received less than the legitime could ask that it be completed. See A child was left out of the will.
See also the comparison preterition vs disinheritance.
Which provisions use this term?
Which Supreme Court rulings are relevant?
Frequently asked questions
What does preterition mean?
It is the omission from a will of a compulsory heir in the direct line, such as a child, without giving that heir anything and without expressly disinheriting him or her. In Morales v. Olondriz (2016), the Supreme Court called it the complete and total omission of a compulsory heir from the testator's inheritance.
What is the effect of preterition?
Under Article 854 of the Civil Code, it annuls the institution of heir, but the devises and legacies stay valid insofar as they are not inofficious. In Nuguid v. Nuguid (1966), the Court said the annulment is total unless the will also contains devises or legacies.
Is it preterition if the child received something in the will?
No. In Morales (2016), the Court said preterition requires that the omission is total: the heir received no legacy, devise or advance on the legitime. A compulsory heir who received less than the legitime may ask that it be completed under Article 906.
Can a spouse be preterited?
Article 854 covers only compulsory heirs 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 an illegitimate child covered?
Yes. In Morales (2016), the omitted heir was the decedent's illegitimate son, and the Court said that as such he is a compulsory heir in the direct line.
What is the difference between preterition and disinheritance?
Preterition is a silent omission. Disinheritance is an express act in a will that deprives a compulsory heir of the legitime for a cause stated by law (Articles 915 and 916). In Nuguid (1966), the Court explained that an invalid disinheritance annuls the institution of heirs only insofar as it prejudices the person disinherited.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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