Legal Right Share | What Is Legitime Under Succession Laws?
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What is legal right share | Legitime

Article 886 of the Civil Code provides for the definition of what a legitime is. It is a legal right share of the compulsory heirs after the death of the decedent. Legitime is “that part of the testator’s property which he [testator] cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs.”1

Basically, legitime is the inheritance or part of a person’s estate or rights which a compulsory heir receives. It cannot be sold, donated, transferred, or disposed of freely since this is reserved to compulsory heirs as provided by law. Moreover, it cannot be transferred to a stranger who is not part of the family.

Imagine a situation wherein a deceased father left all his property to only one heir who happens to be a non-relative. In this kind of situation, what should the family members do? To whom does the family run to protect their interests from being taken away due to the biased actions of their deceased family member?

The Philippine Succession Law has set strict rules on who may inherit the property from a deceased relative, and how it can be transferred to compulsory heirs.

In layman’s term, legitime is the security given to heirs to protect them from being cut off or axed from the testator’s estate due to biases or ill-feelings.

Who are entitled to the Legitime?

Under the the Philippine Succession Law, compulsory heirs are entitled to the legitime that reserved by law for them, and who shall succeed to it, whether the testator approves it or not.

For handy determination of the legitime of the compulsory heirs, you may refer to the article “Inheritance Law Philippines – Heirs & Distribution Explained | What Is Legal Or Intestate Succession?” to see the Table of Legitime.

When a person dies, with or without a will, his compulsory heirs are entitled to receive some or all of his properties or transmissible rights and obligations, or both. A person, during his lifetime, cannot dispose, in any manner, his properties or transmissible rights and obligations, which are reserved by law for his compulsory heirs.

Who are Compulsory Heirs?

Compulsory heirs are the persons are mandated by law to be the heirs of the decedent and are entitled to a specific portion of his estate or rights or both. Article 887 provides who are compulsory heirs, to wit:2

  1. Legitimate children and descendants, with respect to their legitimate parents and ascendants;3
  2. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;4
  3. The widow or widower;5
  4. Acknowledged natural children, and natural children by legal fiction;6
  5. Other illegitimate children referred to in Article 287.7

Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved.8

The father or mother of illegitimate children of the three classes mentioned shall inherit from them in the manner and to the extent established by this Code.9

Distinguish Compulsory Heirs from Legal Heirs

The compulsory heirs are the legitimate children, the spouse and their legitimate descendants, and those who are proven illegitimate children and their descendants, whether legitimate or not. If there is no legitimate children, the legitimate parents or the ascendants will be considered as compulsory heirs.

As provided in the law of succession, the compulsory heirs will automatically inherit the estate of the decedent at the time of death. Such estate shall include both personal properties and real estate which the decent owned.

The Civil Code identifies certain relatives who are deemed compulsory heirs and intestate heirs. They refer to relatives that become heirs by virtue of compulsory succession or intestate succession, as the case may be, by operation of law.10

Legal heir, on the other hand, is defined as an individual who is lawfully authorized to inherit some or all of the estate of a person who dies intestate. It basically means that the deceased person has not established a legal last will and testament in the course of his lifetime.

Aside from Compulsory Heirs, are the Legal Heirs entitled to Legitime?

As a general rule, compulsory heirs cannot be excluded from succession. As a matter of fact, the law set aside a percentage of the inheritance for them. Such portion is untouchable and called as the legitimes of the compulsory heirs.

The legitimes of the compulsory heirs are defined as the part of the inheritance, particularly reserved for them. Take notice that the Philippine law reserves only a percentage and not a total or particular piece of the subject inheritance.

If a compulsory heir declines of his or her reserved percentage, either wholly or in partially, the law will take measures to correct this. But If there is no compulsory heir, there is no legitime to be safeguarded.11

“The decedent not having left any compulsory heir who is entitled to any legitime, he was at liberty to donate all his properties, even if nothing was left for his siblings-collateral relatives to inherit.”12

According to article 842 of the Civil Code of the Philippines, one who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.13

On the other hand, one who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs.14

What is a Presumptive Legitime?

Presumptive legitime is an advance on the legitime which is given to the children after the termination of the marriage of their parents either by declaration of void marriages or annulment under Article 43 and Article 44 of the Family Code and Articles 40 and 45 in relation to Article 51 of the same code,15 which comprises of one-half of the value of the spouses’ conjugal properties at the date of the final judgment.

It is taken from the conjugal properties of the spouses and not from the exclusive or inherited properties of each. It is not an actual legitime but merely a presumption and shall be delivered upon partition.

What is future Legitime?

A future legitime is merely an expectancy, and the heir does not acquire any right over the same until the death of the testator.

Hence, juridically, there is nothing on which to compromise. Furthermore, Art. 1347 of New Civil Code of the Philippines expressly provides that, “no contract may be entered into upon future inheritance except in cases expressly authorized by law.16

An inheritance is to be considered “future” when the succession has not been opened at the time of the contract. Such legitime cannot also be compromised along with the other legitime as provided by law.

Is there Legitime in Intestate Succession?

Yes, there is legitime in intestate succession.

It has been said that no one will know when will a person die. Despite the fact that death is an event that will certainly come, no one can really totally prepare for it. Death can occur anytime and anywhere, and more often than not, it leaves people caught off guard and sometimes hanging.

Untimely deaths prevent people from properly disposing their properties. They were not able to express their wishes concerning their estate because they ran out of time, unexpectedly.

The law, nevertheless provides what the decedent had failed to take into account in a last will and testament by designating persons who are to succeed to the estate taking into consideration the person’s affection and their ties of blood with the deceased.

Intestate succession is the transmission of inheritance in the absence of will and is based on the presumed will of the decedent. Article 960 of the Civil Code provides the instances where legal succession can take place. Such provision stated that:17

Art. 960. Legal or intestate succession takes place:18

  • If a person dies without a will, or with a void will, or one which has subsequently lost its validity;19
  • When the will does not institute an heir to, or dispose of all the property belonging to the In such case, legal succession shall take place only with respect to the property of which the testator has not disposed;20
  • If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place;21
  • When the heir instituted is incapable of succeeding, except in cases provided in this Code.22

There is legitime in intestate succession since compulsory heirs are necessarily intestate heirs. Since compulsory heirs are entitled to their legitimes from the decedent, the same is reserved for them by law. Despite the absence of a will, they acquire their legitimes by operation of law.

The legitime of compulsory heirs should never be impaired even if there is no will which the testator executed prior to his death. Their legitimes should be satisfied first from the net estate. After the satisfaction of the compulsory heirs’ legitimes, the remainder of the estate will be distributed through intestacy.

Thus, there is legitime in intestate succession because of the presence of compulsory heirs which are necessarily considered as intestate heirs.

How do you apply the rules on Legitime in Intestate Succession?

As the law provides, in every inheritance, the relative nearest in degree excludes the more distant ones, saving the right of representation when it properly takes place.23

Relatives in the same degree shall inherit their equal shares, subject to the provisions of Article 1006 with respect to relatives of the full and half blood, and of Article 987, paragraph 2, concerning division between the paternal and maternal lines.24

Rule on Proximity

This rule contemplates that the nearer relative excludes farther relative or the Rule on Proximity. As elucidated in the case of Ofelia Hernando Bagunu vs. Pastora Piedad, “[t]he rule on proximity is a concept that favors the relatives nearest in degree to the decedent and excludesthe more distant ones except when and to the extent that the right of representation can apply.”25

For instance, Margaret died without a will, leaving Elizabeth, her sister, and Edward, her cousin. Who is entitled to the estate of Margaret? Only Elizabeth inherits because the nearer relative excludes the farther. Here, Elizabeth, being the decedent’s sister is the nearest of her kin. Thus, she is alone entitled to the estate of Margaret. What if Edward is also a sibling of Margaret? The answer would be Elizabeth and Edward are entitled to equal shares.

Right of Representation 

Art. 972 of the Civil Code provides that the right of representation takes place in the direct descending line, but never in the ascending. In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood.

From the above illustration, suppose that Edward and Elizabeth are Margaret’s siblings. Charles is the son of Elizabeth; George is the son, Marina is the granddaughter, and Charlotte is the great granddaughter of Edward. Suppose that Margaret dies, and so are Elizabeth, Edward, Marina, and George. Now who is entitled to the estate of Margaret? Charles or Charlotte? The answer is Charles. Charlotte cannot inherit the estate by right of representation because she is only the great grand niece of Margaret. In the collateral line, the right of representation takes place only in favor of the children of brothers or sisters, or in other words, nephew or nieces. Moreover, the presence of Charles will exclude the collateral relatives of Margaret.

In the case of Salao vs. Salao, the Supreme Court explained that “in the collateral lines, representation in intestate succession takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood. A nephew excludes a grandniece or great grandnephews.”26

x x x x . . . . since in the collateral line, representation takes place only in favor of the children of brothers or sisters whether they be of the full or half blood is (Art 972, Civil Code). The nephew excludes a grandniece like Benita Salao or great-grandnephews like the plaintiffs Alcuriza (Pavia vs. Iturralde 5 Phil. 176).27

Order of Intestate Succession

Art. 978 of the Civil Code provides that “succession pertains, in the first place, to the descending direct line. Justice Edgardo Paras, in his words,28 has enumerated the said order of intestate succession, to wit:

“If the deceased was a legitimate child, the order is:

  1. Legitimate children and their legitimate descendants;
  2. Legitimate parents and other legitimate ascendants;
  3. Illegitimate children and their descendants, whether legitimate or illegitimate;
  4. Surviving spouse, without prejudice to the rights of brothers and sisters, nephews and nieces, should there be any;
  5. Collateral relatives up to fifth degree of relationship; and
  6. The

As to the deceased illegitimate child:

  1. Legitimate children and other legitimate descendants;
  2. Illegitimate children and other descendants;
  3. Illegitmate parents;
  4. Surviving spouse, illegitimate brithers and sisters; nephews andnieces; and
  5. The ”

As to adopted children, the rule is that they are entitled to succeed to the property of adopting parents in the same manner as a legitimate child.29

Under the recent law on Adoption, Republic Act [RA] No. 855230 or the Domestic Adoption Law of 1998, it provides the effects of adoption in matters of succession. Thus:

Section 17. Legitimacy. – The adoptee shall be considered the legitimate son/daughter of the adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations provided by law to legitimate sons/daughters born to them without discrimination of any kind. To this end, the adoptee is entitled to love, guidance, and support in keeping with the means of the family.31

Section 18. Succession. – In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation. However, if the adoptee and his/her biological parent(s) had left a will, the law on testamentary succession shall govern.32

Reserva Troncal | Preservation of Clan’s Property

Reserva troncal or sometimes called reserva lineal is actually an instance of delayed succession. It occurs when a property which was acquired by a descendant or the propositus from his ascendant, brother, or sister (the origin of the property) by gratuitous title is inherited by operation of law by another ascendant which is called the reservista.

The reservista has the obligation to reserve such property for the benefits of the descendant within the third degree and who belong to the line from which such property originated. These relatives within the third degree are called the reservatarios.

Article 891 of the Civil Code provides for the concept of reserva troncal. Such provision provides that:

“The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came.”33

Reserva troncal is considered as an instance of delayed succession. The reason is that the third degree relatives or the reservatarios are deemed to succeed from the descendant propositus.

However, it is on the condition that such reservatarios should survive the reservista or the one who is obliged to reserve the property. The reservatarios only acquire the right to the property upon the death of the reservista.

There are actually four characters involved in reserva troncal. These are the following:

  1. The origin of the property: this is the ascendant, or a brother or sister from whom the descendant acquired the property by gratuitous
  2. The propositus: this is the descendant who acquires the property from the ascendant or a brother or sister by gratuitous title and who died without
  3. The reservista: this is the ascendant who acquires the property by operation of law from the propositus and is the one who has the obligation to reserve such
  4. The reservatarios: these are the relatives of the propositus within the third degree and who belong to the line from which the property came and in whose favor the law makes the reservation

Since we now know the people who are involved in a reserva troncal, when can we say then that there is a reserva troncal? For there to be a reserva troncal, the following requisites must concur; to wit:

  • That property is acquired by gratuitous title by a descendant from an ascendant or a brother or sister;
  • That the same property acquired by the descendant (the propositus) passes by operation of law to another ascendant (the reservista); and
  • That third degree relatives of the propositus who belong to the line from which the property originally came survive the ascendant reservista.

It should be noted that the reason why the concept of reserva troncal exists is to prevent persons outside a family from acquiring certain property that would otherwise have remained from where it comes from. It provides an assurance that such property will be returned to the line where it came from and would not be in the hands of strangers.

Can one sell his future inheritance, even while the testator is alive?

No, one cannot sell his future inheritance while the testator is still alive.

A contract of sale is where one of the contracting parties obligates himself to transfer the ownership of and to deliver a determinate thing, and the other to pay therefor a price certain in money or its equivalent. Since a sale is a contract, it should abide with the elements of a valid contract.

The elements of a valid contract are provided under the Civil Code which are consent of the contracting parties, object certain which is the subject matter of the contract; and cause of the obligation which is established. It should be borne in mind that there is no contract if one of the elements of a valid contract is lacking.

Article 1347 of the Civil Code expressly provides that all things which are not outside the commerce of men, including future things, may be the object of a contract.34

All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law.

Moreover, Article 777 of the same Code provides that the rights to the succession are transmitted from the moment of the death of the decedent.35

Applying the abovementioned provisions of the law, a person cannot sell his future inheritance while the testator is alive since there can be no valid contract of sale since one of the elements of a valid contract is lacking particularly the object certain which is the subject matter of the contract.

The Civil Code has expressly pointed out that no contract may be entered into upon future inheritance except in cases expressly authorized by law. For the inheritance to be considered “future”, the succession must not have been opened at the time of the execution or perfection of the contract.

A contract may be classified as a contract upon future inheritance, prohibited under the second paragraph of Article 1347, where the following requisites concur:36

(1) That the succession has not yet been opened;37

(2) That the object of the contract forms part of the inheritance; and38

(3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature.39

Prior to the death of the testator or while he is still alive, all that the heirs have over his estate is a mere expectancy since they can only acquire such right to the inheritance at the time the testator dies.

If the testator is still alive, they have not acquired such right to the inheritance yet. Although ownership is not necessary in a contract of sale, such person should at least have the right to sell such property.

In this case, there is no right to sell and no ownership of the property yet. Thus, one cannot sell his future inheritance while the testator is still alive.

Who are the Voluntary Heirs?

The Civil Code provides that “an heir is a person called to the succession either try the provision of a will or by operation of law”40

This provision of the law explains that an heir is one who succeeds the testator of his property or transmissible rights. Consequently, an heir may either be compulsory, as discussed above, or voluntary.

Voluntary heirs are those persons other than the compulsory heir. They are the heirs that are instituted by the decedent by virtue of a will. It is the testator who chooses his voluntary heirs. The latter’s share is not chargeable to the legitime of compulsory heirs.

There can only be voluntary heir if the testator will execute a will, and the voluntary heir is expressly named in the said document. In other words, a voluntary heir is dependent only to the testator if whether the latter executes a will.

Nevertheless, if the testator shall execute a last will and testament to institute a voluntary heir, the act must not be arbitrary in relation the rights of the compulsory  heirs. It must not be inofficious.

As voluntary heirs are only called to succeed upon the properties of the testator by virtue of the will of the latter, we can conclude that devisees and legatees are a class of voluntary heirs referred to by the law.

Who are the Devisees and Legatees?

Paragraph 2 of Article 782 of the Civil Code provides that “devisees an d legatees are persons to whom gifts of real and personal property are respectively given by a virtue of a will.”41 The law provides that voluntary heirs are those other than compulsory heirs who are instituted by the decedent by virtue of a will.

Here, it may be considered that the devisees and legatees are those heirs, other than the compulsory heirs to succeed the properties of the decedent. As the compulsory heirs represent the juridical personality of the deceased, voluntary heirs, devisees and legatees never represent the personality of the decedent no matter how big the legacy or devise is.

Further, the former can inherit an undetermined quantity of inheritance, while the latter is entitled only to a determinate thing or fixed amount. Lastly, the former can exist through testate or intestate succession while the latter can exist only in testamentary succession.

Devisees are those who succeed to a particular real property or devises. For instance, Mario gave Lucio 2 hectares of land. On the other hand, legatees are those who succeed to a particular personal property or legacy. From the illustration above, Lucio will become a legatee if Mario will give him a Toyota Land Cruiser Prado.

Under the law, legacies and devises are testamentary dispositions, giving an economic benefit or advantage other than an aliquot or fractional part of the inheritance.42 They are specific properties, whether real or personal, of the testator, devised of bequeathed to third person.

Final Thoughts

Every compulsory heir is entitled and should not be deprived of their rightful share in the testator’s property, unless there is a valid disinheritance on the grounds provided by the law or they are incapacitated, under the grounds prescribed by law, to receive the same from the testator.

The legitime is that portion of the testator’s property which he is not able to freely dispose, since this has been reserved by the law for his compulsory heirs. He cannot also impose upon the same any burden, encumbrance, condition, or substitution of any kind whatsoever.

The legitime protects the heirs from possible prejudice or biases of the testator against the heir. It gives the heir an assurance that he will receive something from the testator regardless of the testator’s regard for him.

It gives him a sense of security that he will receive a portion of the testator’s estate when the testator dies despite the fact that he feels that testator doesn’t like him.

The legitime is not based on the desires or pleasure of the testator. It is something that the law reserves for the compulsory heirs, in order to protect their successional rights.

The bottom line is, compulsory heirs should be prioritized in terms of the giving their corresponding shares from the inheritance. Their shares should be satisfied first from the net estate before the shares of others.

It would be an injustice for the heirs if they will not receive anything while others or those who are not directly related to the testator would receive a portion of his property.

  1. Article 886, Civil Code[]
  2. Article 887, Civil Code[]
  3. Id.[]
  4. Id.[]
  5. Id.[]
  6. Id.[]
  7. Id.[]
  8. Id.[]
  9. Id.[]
  10. Treyes vs. Larlar, et al., G. R. No. 232579, September 8, 2020[]
  11. Arellano vs. Pascual, G. R. No. 189776, December 15, 2010[]
  12. Ibid.[]
  13. Article 842, Civil Code[]
  14. Id.[]
  15. Articles 40, 43, 44, 45, and 51 of the Family Code[]
  16. Art. 1347, Civil Code[]
  17. Article 960, Civil Code[]
  18. Id.[]
  19. Id.[]
  20. Id.[]
  21. Id.[]
  22. Id.[]
  23. Article 962, Civil Code[]
  24. Id.[]
  25. G. R. No. 140975, December 8, 2000[]
  26. G.R. L-26699, March 16, 1976[]
  27. Ibid.[]
  28. Page 481-482, Civil Code of the Philippines Annotated, Vol. III, Paras, 2008[]
  29. Article 979, Civil Code[]
  30. RA 8552[]
  31. Section 17, RA 8552[]
  32. Section 18, RA 8552[]
  33. Article 891, Civil Code[]
  34. Article 1347, Civil Code[]
  35. Article 777, Civil Code[]
  36. Ferrer vs. Spouses Diaz, et al., G.R. No. 165300 : April 23, 2010[]
  37. Id.[]
  38. Id.[]
  39. Id.[]
  40. Article 782, Civil Code[]
  41. Article 782, Civil Code[]
  42. Page 403, Civil Code of the Philippines Annotated, Vol. III, Paras, 2008[]

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