Selling Conjugal Property After a Spouse Dies

For absolute community of property, the regime of most marriages celebrated under the Family Code without a prenup (Article 75):

For conjugal partnership of gains, which applies by default to marriages celebrated under the Civil Code before the Family Code took effect (Civil Code Article 119), or when chosen in a prenup:

"Disposition" includes a sale or donation. "Encumbrance" includes a mortgage.

For which regime applies to a marriage, see Absolute community vs conjugal partnership. Without a prenup, the date of the marriage decides it. For an overview of the property regimes, see property of spouses: who owns what in a marriage.

Article 129 sets the steps for a conjugal partnership. It starts with an inventory "listing separately all the properties of the conjugal partnership and the exclusive properties of each spouse." Debts are paid, and the net remainder is divided equally between husband and wife, unless the marriage settlements say otherwise or there was a waiver or forfeiture. Only after this is the deceased spouse's half known, and that half goes to his or her heirs, who usually include the surviving spouse.

The law does not forbid the new marriage, but it changes its property rules. Articles 103 and 130 say that if the surviving spouse marries again without complying with these requirements, "a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage."

Two Supreme Court cases involved sales by a surviving spouse without prior liquidation, and in both the sale was not struck down. But in both, the wife died before the Family Code took effect on August 3, 1988, so the Court relied on rights already vested under the Civil Code:

• In *Heirs of Protacio Go, Sr. v. Servacio* (2011), the wife died in 1987 and the husband sold a portion of the land in 1999. The Court said the sale was "not necessarily void", because an implied co-ownership arose and the husband could sell his undivided share. It also said that for a conjugal partnership existing when the Family Code took effect, "any disposition of the conjugal property after the dissolution of the conjugal partnership must be made only after the liquidation; otherwise, the disposition is void." The Court said the proper remedy of the other heirs was an action for judicial partition.
• In *Domingo v. Spouses Molina* (2016), the wife died in 1968 and the sale was in 1978. The Court said Article 130 did not apply because the Family Code is "without prejudice to vested rights already acquired in accordance with the Civil Code or other laws."

No decision read for this page applies Articles 103 and 130 to a death after the Family Code took effect. So this page does not say that a sale without liquidation after a recent death is valid as to the seller's own share. The words of the law are that such a sale "shall be void".

For a sale or mortgage made by one spouse without the other's consent while both are alive, the rule is in Article 124 and the Homeowners Savings v. Dailo case. That case did not apply Article 130.

The liquidation of the common property happens together with the settlement of the deceased spouse's estate. If there is no will and no debts and all heirs are of age (or minors are properly represented), Rule 74 of the Rules of Court lets the heirs divide the estate by a public instrument filed with the register of deeds, without a court case. See Extrajudicial settlement of estate and Inheritance without a will.

These are made-up examples to show how the rules work. They are not advice for any real case.

Nora and Oscar. They married in 2000 without a prenup, so absolute community applies. Oscar dies in 2024. No estate case is filed. Under Article 103, Nora must liquidate the community property within one year. If she sells community land after that year without liquidation, the law says the sale "shall be void".

Nora remarries. If Nora marries again without liquidating first, her new marriage is governed by complete separation of property (Article 103, last paragraph).

Pedro and Rosa. They married in 1980, so conjugal partnership applies. Rosa dies in 2025. The period under Article 130 is six months. Pedro and their adult children sign an extrajudicial settlement that first separates Pedro's half of the conjugal property and then divides Rosa's half among her heirs.

Talk to a lawyer before buying or selling land of a married person who has died, or if you are a surviving spouse with property still in both names. The deadlines in Articles 103 and 130 are short, the effect of missing them can be serious, and the rules differ for deaths before and after August 3, 1988. A lawyer can check the title, the marriage date, the heirs and the estate tax papers.

If you cannot afford a lawyer, see Free legal help in the Philippines for the Public Attorney's Office (PAO) and other options.