How Is Inheritance Divided Under a Will? Legitime Shares
Quick answer
A will in the Philippines cannot give away everything. The law reserves a part of the estate, called the [legitime](/law/glossary/legitime), for the compulsory heirs: legitimate children share one-half of the estate, while the surviving spouse and children born outside marriage get fixed shares. Only what is left (the free portion) can go to anyone the person chooses. A will must also be approved by a court before it can transfer any property.
What is the legitime?
Article 886 of the Civil Code defines the legitime:
Legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.
The person who makes the will (the testator) is free only over the rest. Article 904 adds that the testator "cannot deprive his compulsory heirs of their legitime, except in cases expressly specified by law". Those cases are disinheritance for a legal cause, explained in Can parents disinherit a child?
Who are the compulsory heirs?
Article 887 lists them. In plain words:
- Legitimate children and descendants, such as grandchildren.
- If there are none, legitimate parents and ascendants, such as grandparents.
- The widow or widower.
- Children born outside marriage (illegitimate children).
The article still uses the old 1950 names for illegitimate children ("acknowledged natural children", "natural children by legal fiction" and "other illegitimate children"). The Family Code later gave all of them one rule for their share (see below). The spouse and the illegitimate children are not excluded by the legitimate children or parents: they inherit together. Article 887 also says:
In all cases of illegitimate children, their filiation must be duly proved.
More on this group in Compulsory heir.
How much is each heir's share?
The shares are fractions of the net estate. The main ones:
| Who survives | Share fixed by law |
|---|---|
| Legitimate children | One-half of the estate, shared among them (Art. 888) |
| Spouse with one legitimate child | One-fourth for the spouse (Art. 892) |
| Spouse with two or more legitimate children | The same as one child's legitime, taken from the free half (Art. 892) |
| Each illegitimate child | One-half of the legitime of one legitimate child (FC Art. 176) |
| Legitimate parents, when there are no legitimate children | One-half (Art. 889) |
| Spouse with legitimate parents | One-fourth for the spouse (Art. 893) |
| Spouse and illegitimate children only | One-third for the spouse, one-third for the illegitimate children (Art. 894) |
| Spouse alone | One-half; one-third in some marriages made at the point of death (Art. 900) |
| Illegitimate children alone | One-half (Art. 901) |
For more combinations, with the article for each row, see the legitime shares table. Article 888 gives the core rule:
The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.
For children born outside marriage, the rule in force is the last sentence of Family Code Article 176, as amended by Republic Act No. 9255:
The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.
Their legitime comes from the free portion. Article 895 adds that the total legitime of the illegitimate children can never exceed the free portion, and that the spouse's legitime must be fully satisfied first. See Can an illegitimate child inherit?
How is the estate counted before dividing it?
Three steps come first:
- Marital property is liquidated. If the person was married, the absolute community or conjugal partnership is settled first (Family Code Articles 102 and 129). Only the deceased's own share becomes the estate.
- Debts are paid. Article 908 says the legitime is computed on what was left at death, "deducting all debts and charges".
- Some donations are added back. The value of donations subject to collation, at the time they were made, is added to the net estate (Article 908). Donations given to children are charged to their legitime (Article 909).
The rights to the inheritance pass at the moment of death (Article 777), but the actual division happens later, in court or by agreement of the heirs.
How does this work in real life?
These are made-up examples to show how the rule works. They are not advice for any real case. In each one, the net estate is PHP 1,200,000.
Ana leaves her husband Carlo and two children, Ben and Dina. Her will names all three, leaves each of them the share the law reserves, and gives what is left to Ben. The children's legitime is one-half, PHP 600,000, so PHP 300,000 each (Art. 888). Carlo gets the same as one child, PHP 300,000, taken from the free half (Art. 892). The free portion left is PHP 300,000, and it goes to Ben. Result: Ben PHP 600,000, Dina PHP 300,000, Carlo PHP 300,000. If the will had left Dina less than PHP 300,000, she could demand the rest (Art. 906).
Pedro, a widower, leaves two legitimate children and Liza, his daughter born outside marriage, whose filiation is proved. The legitimate children share PHP 600,000 (PHP 300,000 each). Liza's legitime is half of one child's: PHP 150,000, taken from the free portion (FC Art. 176). The free portion left is PHP 450,000, which Pedro's will can give to anyone.
Rosa leaves her husband and one son. The son's legitime is PHP 600,000 and the husband's is one-fourth, PHP 300,000 (Art. 892). Rosa's will can freely give the last PHP 300,000.
What if a child is left out of the will?
Leaving out a compulsory heir in the direct line, such as a child, is called [preterition](/law/glossary/preterition). Article 854 says it "shall annul the institution of heir", but gifts of specific property in the will (devises and legacies) stay valid as far as they do not cut into the legitimes. Whether a will has preterition, or only gives a child less than the legitime (Art. 906), changes the result a lot. That is a question for a lawyer.
Does a will need to go to court?
Yes. Article 838 says:
No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.
This court process is called probate. Rule 75 of the Rules of Court says the same. A person may even ask the court to allow his or her own will while still alive (Art. 838). If there is no will at all, see Who inherits if there is no will? For the whole picture, see Inheritance in the Philippines.
What documents prove who the heirs are?
Heirs usually show their relationship with civil registry documents, such as birth, marriage and death certificates. You can order them from the PSA online: see how to request a PSA certificate.
When do you need a lawyer?
Talk to a lawyer before you sign, contest or rely on a will, and before any heir signs a waiver or a partition. A lawyer is needed for probate, for a claim that a will cuts into a legitime, for preterition, and when the filiation of a child born outside marriage is disputed. The amounts on this page are only illustrations; real shares depend on the net estate, the donations and the debts.
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?
Frequently asked questions
Can a parent leave everything to one child in a will?
No. Article 904 says a testator cannot deprive compulsory heirs of their legitime, except in the cases the law allows (disinheritance). A parent can give one child, on top of that child's own legitime, only what is left of the free portion after the other heirs' shares are taken from it.
What is the free portion?
It is the part of the estate left after all the legitimes are counted. The person making the will may give it to anyone, including one of the children, a friend or a charity.
How much does the surviving spouse get?
It depends on who else survives. With one legitimate child the spouse gets one-fourth (Article 892); with two or more, the same as one child's legitime; with legitimate parents, one-fourth (Article 893); alone, one-half (Article 900).
How much does a child born outside marriage get?
Each illegitimate child gets one-half of the legitime of a legitimate child (Family Code Article 176, as amended by Republic Act No. 9255). The child's filiation must be proved (Civil Code Article 887).
Is the legitime computed on the whole house and lot?
No. Under Article 908 it is computed on the net estate: what the person left at death minus debts and charges, plus the value of donations that are subject to collation. If the person was married, the marital property is liquidated first.
Does a will work without going to court?
No. Article 838 says no will passes property unless it is proved and allowed in court. This process is called probate.
General information, not legal advice. For your case, ask a lawyer, the Public Attorney's Office (PAO) or the agency.
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