A Child Was Left Out of the Will: What Happens?
Quick answer
If a child receives nothing at all under the will and is not expressly disinherited, this is called preterition. Under Article 854 of the Civil Code, it annuls the appointment of heirs in the will. Gifts of specific property or amounts (devises and legacies) stay valid as long as they do not cut into the shares the law reserves for compulsory heirs. If the will has no such gifts, the whole estate passes as if there were no will. If the child got something, but less than the share the law reserves, it is not preterition: the child may ask that his share be completed.
What does Article 854 say?
Article 854 reads:
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.
"Compulsory heirs in the direct line" are the testator's children and descendants, and his parents and ascendants. "Institution of heir" is the part of the will that names who inherits the estate. "Devises" and "legacies" are gifts of particular property in a will. "Inofficious" means that the gift eats into the legitime, the share the law reserves for compulsory heirs (see Article 888 and Legitime shares).
When is a child "preterited"?
The omission must be total. In Morales v. Olondriz (2016), the Supreme Court said preterition happens when a compulsory heir "is not named or, although he is named as a father, son, etc., he is neither instituted as an heir nor assigned any part of the estate without expressly being disinherited". It "requires that the omission is total, meaning the heir did not also receive any legacies, devises, or advances on his legitime."
In Morales, the omitted heir was the decedent's illegitimate son. The Court said that, as the decedent's illegitimate son, he "is a compulsory heir in the direct line." See also Inheritance rights of an illegitimate child.
The rule covers the direct line only. In Acain v. Intermediate Appellate Court (1987), the Court said Article 854 "may not apply" to the widow, "as she does not ascend or descend from the testator, although she is a compulsory heir."
What happens to the will?
- No devises or legacies. In Nuguid v. Nuguid (1966), the testatrix named her sister as sole heir and left out her parents. The Court said the annulment "is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies." The estate passed by intestate succession, the rules for an estate without a will. Morales said the same: "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."
- With devises or legacies. In Trinidad v. Trinidad (2023), the children of the first marriage were preterited, but the Court said "the legacies and devises contained in the Will should be respected and given force and effect in so far as they are not inofficious or excessive". The case went back to the trial court.
Under Article 855, the share of an omitted child is taken first from any part of the estate the will did not dispose of, then proportionally from the shares of the other compulsory heirs.
How is preterition different from disinheritance?
Disinheritance is a deliberate act: the will deprives a compulsory heir of his legitime for one of the causes the law lists, such as those in Article 919 for children. Nuguid explained that an invalid disinheritance under Article 918 annuls the institution of heirs only "insofar as it may prejudice the person disinherited", a phrase that Article 854 does not contain.
There must also be an institution of heirs to annul. In Seangio v. Reyes (2006), a handwritten document disinherited one son and only mentioned a daughter as a witness. The Court held there was no preterition, because the document did not institute any heir to the exclusion of the others. See also Can parents disinherit a child?
What if the child received less than the legitime?
That is not preterition. Article 906 says: "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." The will stands, and the child's share is completed.
How does this work in real life?
This is a made-up example to show how the rules work. It is not advice for any real case.
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. Under Article 854 as Nuguid and Morales read it, the institution of the wife as sole heir is annulled, and the estate passes by intestate succession, where the children and the wife inherit under the rules on inheritance without a will.
If Tomas had left each child a small lot worth less than the legitime, it would not be preterition; each child could ask that the legitime be completed under Article 906.
See also the meaning of preterition and the comparison preterition vs disinheritance.
When do you need a lawyer?
Talk to a lawyer if you were left out of a parent's will, if a will you are named in leaves out a child, or before the will goes to probate. Whether there is preterition depends on the whole will, on what each heir received and on the court's reading in probate.
If you cannot afford a lawyer, see Free legal help in the Philippines. For more, see Wills and probate and Inheritance.
Which provisions does this answer rest on?
Which Supreme Court rulings are relevant?
Frequently asked questions
What happens if a child is left out of a parent's will?
If the child is a compulsory heir in the direct line and receives nothing at all under the will, without being expressly disinherited, this is preterition. Article 854 of the Civil Code says it annuls the institution of heir, while devises and legacies stay valid insofar as they are not inofficious.
What is preterition?
In Morales v. Olondriz (2016), the Supreme 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 if the child received something, but less than the legitime?
Then it is not preterition, because the omission must be total. Under Article 906, a compulsory heir who received less than his legitime may demand that it be fully satisfied.
Does preterition make the whole will void?
It annuls the institution of heirs. In Nuguid v. Nuguid (1966), the annulment was total because the will had no devises or legacies, so the estate passed as if there were no will. Devises and legacies, where they exist, stay valid insofar as they are not inofficious, as in Trinidad v. Trinidad (2023).
Does preterition apply to an illegitimate child?
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.
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.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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