Excluded heirs and disinherited children

by | Apr 17, 2017 | Estate Law, Wills & Inheritance

Keys to symbolize an estate that should pass to compulsory heirs upon the death of the testator.

Can the son oppose the will?

A father died and left behind property. In his last will and testament, he allotted all his property to his daughters. The father also left behind a son, but the son was not left anything in the will. He was not even mentioned in the will.

Can the son question the will and have a rightful share of the property his father left behind?

Yes. The will should be opposed. This is a case of preterition which is not allowed by law.

What is preterition?

Passed over in the will

The word “preterition” is derived from two Latin terms: praeter – beyond or by; and ire – to go or to pass. Praeterire therefore means to go by, to pass by, or to bypass. It connotes an ignoring, an omitting.[1]

A peg excluded from the pile of pegs symbolizing how a compulsory heir was omitted from a will.

You shouldn’t be excluded from a will if you are a compulsory heir.

Preterition is the total omission of a compulsory heir from the inheritance. It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property, but without expressly disinheriting him even if he is mentioned in the will.[2]

Preterition always involves a situation where there is a last will and testament. The preterition of a direct compulsory heir in a will goes against the laws of inheritance.[3]

Wills have limits fixed by law

When a person dies, the properties he leaves behind will be distributed to his heirs. If he made no last will and testament, then the division of property will be done according to the default law of legal inheritance. If he did make a last will and testament, then the properties will be divided according to what he wrote in his will as long as the will does not violate the limits set by law.

A car barrier, indicating that wills are subject to limits and rules.

Wills have to follow legal limits.

A will must follow the law. This is because the right to make a will is granted by law, and it must be subordinate to law and public policy.[4] Although the will of the testator should be recognized, if his act or intention is contrary to law, morals, or public policy it cannot be given effect.


One of restrictions that Philippine law imposes on wills is that they cannot reduce or take away from the legitime. The legitime is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs. These heirs are called compulsory heirs.[5] Compulsory heirs are entitled to inherit shares allotted by law. These shares are called their legitime.

A group of children as all children are compulsory heirs, including those who have been adopted.

Who are compulsory heirs?

The following are the compulsory heirs entitled to the legitime:

(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children.[6]

Except for the spouse, all these are direct compulsory heirs because they have a direct line of ancestry connecting them upwards or downwards to the deceased.

Spouses are not covered by the special rule on direct compulsory heirs.

Spouses are not direct compulsory heirs.

This is important because there is a special rule for direct compulsory heirs which makes it against the law to bypass them in a will:

Art. 854. 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 devisees and legacies shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs die before the testator, the institution shall be effectual, without prejudice to the right of representation.

A picture of a baby in a bundle on a clothesline. Children who are gained through adopted are direct compulsory heirs.

Adopted kids are also direct compulsory heirs.

It’s worth pointing out that an adopted child is a direct compulsory heir. Adoption gives to the adopted person the same rights and duties as if he were a legitimate child of the adopter and makes the adopted person a legal heir of the adopter. Therefore, an adopted child cannot be preterited.[7]

What is the effect of preterition?

Preterition is invalid and subjects the will to important consequences. The institution of the heir/s named in the will becomes annulled. The devisees and legacies can remain valid only insofar as they do not impair the legitime.

Considering these nullifications, much or all of the inheritance will necessarily be as if there were no will to direct how the properties are apportioned. The properties would therefore be distributed not in accordance with the will, but according to the default shares provided by the law in the absence of a will.

How is preterition invoked?

Note that the omission has to be total for preterition to be invoked so that the will’s institution of the heir is annulled.

A daughter is a compulsory heir of the direct line, but if she was merely allotted a smaller share in her father’s will than her legitime grants her then she was not preterited. Preterition means total omission.

In this example, the daughter was given a smaller share than the others but was not preterited. Preterition is complete omission.

A different remedy is needed when the inheritance is less than what was due to the heir.

Her remedy in such a case is found in Articles 906 and 907 of the Civil Code. She can demand that her share be fully satisfied. She can even demand that it be satisfied from the testamentary dispositions that infringed on or diminished her legitime.

Article 906. 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.

Article 907. Testamentary dispositions that impair or diminish the legitime of the compulsory heirs shall be reduced on petition of the same, insofar as they may be inofficious or excessive.

In any event, these issues should be raised in court estate proceedings where the inheritance issues are threshed out.

How does this relate to disinheritance?

Although preterition is not allowed, a direct compulsory heir can still be disinherited. But disinheritance has to follow the process set by law.

A testator’s disinheritance of his compulsory heirs can only be done through a last will and testament, and only for one of the reasons specified by the Civil Code. The will which disinherits a compulsory heir must state the legal cause for the disinheritance.[8]

A fountain pen denoting the writing on a last will and testament.

Disinheritance must be for the reasons allowed for by law and can only be done in a will.

These exclusive causes for disinheriting a direct compulsory heir are enumerated in Articles 919 and 920. A valid disinheritance is the only way that living compulsory heirs can be deprived of their legitime through a will.

Wills which do not follow the forms, requirements, and limits set by law will be disputed.


Atty. Francesco C. Britanico


[1] Balane, Ruben F., “Preterition – Provenance, Problems, and Proposals.” Philippine Law Journal, Volume 50, No. 5, December 1975, 583
[2] Heirs of Ureta, Sr. vs. Heirs of Ureta, G.R. No. 165748, September 14, 2011
[3] Art. 854. 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 devisees and legacies shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall he effectual, without prejudice to the right of representation.

[4] Nuguid vs. Nuguid, G.R. No. L-23445, June 23, 1966 cf. Justice J.B.L. Reyes and Judge R.C. Puno, An Outline of Philippine Civil Law, 1956 ed., Vol. III, p. 8 citing Gil vs. Murciano, L-3362, March 1, 1951
[5] Article 886
[6] Article 887 cf. Family Code of the Philippines
[7] Acain vs. Intermediate Appellate Court, G.R. No. 72706, October 27, 1987
[8] Articles 915 and 916



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