Surviving legal wives may waive their shares in favor of their children

Yes, a wife inherits from her husband.

Under Philippine law, a surviving spouse has a share of the deceased spouse’s estate.

A surviving spouse is a person who was legally married to the deceased.

A surviving spouse is NOT a common-law partner.

A common-law partner will not generally have rights to a deceased partner’s estate unless:

• There is a will
• There was no legal impediment to the marriage

In either case, generally a lawyer will be needed to either probate the will or to prove the case for co-ownership, as there may be issues with inheritance.

If that is your situation, do contact us so that we can discuss the situation with you, as it can get complicated.

For a legally married spouse, however, it is fairly clear.

A legal spouse is considered an heir and shares in the inheritance under Philippine law.

A legal spouse is furthermore a compulsory heir, which is a type of heir that inherits in both intestate and testate situations.

So, a surviving spouse inherits when there is no will.

And a surviving spouse still inherits when there is a will.

The main requirement is that the surviving spouse is a legal spouse and has not been validly disinherited.

What a wife inherits from her husband’s estate depends on what the conjugal property regime is, among from other factors.

A property regime is how property is shared between a husband and wife.

A property regime between spouses significantly impacts inheritance distribution.

In the Philippines, there are three main property regimes:?

Most marriages now fall under the Absolute Community of Property Regime, unless a prenuptial agreement states otherwise.

All properties are shared equally in the Absolute Community of Property Regime so the wife has half of the estate and inherits part of the husband’s estate.

Note that the timing of key events is also very critical.

• If the husband has already inherited the property before he passes away, the wife will inherit the property.
• However, if the husband has already passed away before he inherits the property, the wife will not inherit the property.

So, whether or not a wife does inherit her husband’s estate can depend on the conjugal property regime in effect as well as on the dates of certain key events.

In most cases, the amount that a wife inherits depends on the will and the other co-heirs that she inherits with – she might inherit with the children of the deceased or the parents of the deceased in case there are no children.

A wife is a compulsory heir.

A compulsory heir is someone who should always inherit in both with a will and without a will scenarios unless validly disinherited.

A compulsory heir generally receives from the deceased’s estate.

The amount the compulsory heir receives depends on who the other remaining relatives are as well as if the free portion of the estate was given by the deceased to another heir.

The free portion of the estate is the only part of the estate that the deceased is allowed to give to whomever he wishes.

So, the amount that the wife inherits is variable, but she always inherits unless validly disinherited.

For more details on how to validly disinherit someone, please read this, as there is a specific process for disinheritance to be considered valid.

For the exact amount that a wife inherits, please read below as this changes depending on the relatives remaining and whether or not there is a will.

A wife inherits with the deceased’s legitimate, illegitimate, and legally adopted children, and the amount she inherits is itemized below.

Let’s go through a few scenarios for an estate that is 1 million

Scenario 1: A wife and 1 legitimate child survive the deceased

If there is a will:

• The legitimate child (or his children): ½ of the estate or 500,000
• Surviving legal spouse: ¼ of the estate or 250,000
• Free portion: ¼ of the estate or 250,000

If there is no will:

• The legitimate child: ½ of the estate or 500,000
• Surviving legal spouse: ½ of the estate or 500,000

Scenario 2: A wife and 2 or more legitimate child survive the deceased

If there is a will:

• The legitimate children (or their children): ½ of the estate divided between them or 500,000 divided by the number of legitimate children so for 2 children, it would be 250,000.
• Surviving legal spouse: same amount as the legitimate children but taken from the free portion so when there are 2 children, the spouse would inherit 250,000.
• Free portion: part of the estate remaining so in a situation with 2 children, the free portion would be 250,000.

If there are 3 legitimate children, then the amount that a wife would inherit would be different.

If there is no will, the estate is divided equally by the children and spouse

Scenario 3: A wife and 1 legitimate child and 1 illegitimate child

If there is a will:

• The legitimate child (or his children): ½ of the estate or 500,000
• The illegitimate child (or his children): ¼ of the estate taken from the free portion or 250,000
• The legal spouse: ¼ of the estate taken from the free portion or 250,000

In this situation, there is no free portion that remains.

If there is no will, the distribution is exactly the same.

Scenario 4: A wife and 2 or more legitimate child and 2 or more illegitimate child

If there is a will:

• The legitimate children (or his children): ½ of the estate divided among them or 500,000 divided by the number of children so it would be Php 166,667 in a case with 3 legitimate children
• The illegitimate child (or his children): ½ of the share of a legitimate child’s estate taken from the free portion or Php 83,333 for each of the illegitimate children
• The legal spouse: same share as that of a legitimate child from the free portion

If there is no will:

• The legitimate children (or his children): ½ of the estate divided among them or 500,000, which would be Php 166,667 for each of the 3 children for a situation in which there are 3 legitimate children
• The illegitimate child (or his children): ½ of the share of a legitimate child’s estate taken from the free portion or Php 83,333 for each of the illegitimate children
• The legal spouse: same share as that of a legitimate child from the free portion but will receive a minimum of ¼ of a legitimate child if the estate is not enough

Now—

It can get a little complicated because it depends on who survives the deceased and whether there is a will.

I’ve listed a lot of the common scenarios here for when there are children, but you can also take a look at my very comprehensive post here for more information.

In the next section, I’ll tackle the amount that a wife inherits when there are no children.

If there are no children, then the wife might inherit with the deceased’s parents or siblings.

The amount that she inherits depends on the remaining relatives and can be very tricky to determine unless you are a lawyer.

In case you are not certain what you stand to inherit, you can contact us, as we have handled estates for many people for quite some time but I’ll tackle some common scenarios.

Below are some scenarios for an estate that is 1 million.

Scenario 1: A wife and siblings of the deceased

If there is a will:

• Siblings: none
• Surviving legal spouse: ½ of the estate or 500,000
• Free portion: ½ of the estate or 500,000

If there is no will:

• Siblings: ½ of the estate or 500,000
• Surviving legal spouse: ½ of the estate or 500,000

Scenario 2: A wife and legitimate parents or legitimate grandparents of the deceased

If there is a will:

• Legitimate Ascendants of the deceased: ½ of the estate or 500,000
• Surviving legal spouse: ¼ of the estate or 250,000 taken from the free portion
• Free portion: ¼ of the estate or 250,000

If there is no will:

• Legitimate Ascendants of the deceased: ½ of the estate or 500,000
• Surviving legal spouse: : ½ of the estate or 500,000

Yes, a husband can disinherit his wife through a will and based on valid disinheritance grounds.

Valid disinheritance grounds are very limited.

Validly disinheriting someone is therefore quite difficult because you have to have the right grounds and it has to be through a will.

Without a will that is proven in court, there is no disinheritance.

These are the various grounds with which to disinherit a spouse:

• Attempting to kill the husband or one of his relatives
• When the spouse has accused the husband of a crime with 6 or more years of imprisonment and that accusation is without merit
• When the spouse has given cause for legal separation or loss of parental authority
• When there is an unjustifiable refusal to support the children or the spouse
• When the spouse has forced a change to a will

These are very limited grounds.

Furthermore, the grounds have to be proven in court.

So, if there is a disinheritance, it can be fought, although it is often a long and very expensive battle.

A surviving wife inherits her husbands estate with her children.

If a husband dies, the person who gets the property is the surviving spouse as well as any children of the deceased.

A wife is a legal heir of her husband.

Any child of the deceased husband is also a legal heir.

So, for example, if the deceased husband has illegitimate children and legitimate children, all these children inherit along with the spouse.

Consult a lawyer because Philippine laws of succession can get confusing sometimes

Both a spouse and a child of the deceased inherit and share the same rights as heirs.

In the eyes of the law, a spouse and child are both compulsory heirs.

However, the amount that a spouse inherits varies and depends on:

• The number of children
• Whether those children are legitimate or illegitimate
• and whether there was a will

So, a spouse’s rights to an inheritance in terms of amounts can differ.

For one spouse and one child, they would each have Php 500,000 of a 1M estate when there is no will.

When there is a will, however, the child would have Php 500,000 of a 1M estate, while the spouse has Php 250,000 and the remaining part would go to the free portion.

This is one of the scenarios—there are many.

Many of the common scenarios are in the section on What A Wife Inherits When There Are Children up above, since the amount really changes depending on the factors of the case.

The legal wife and illegitimate children are both heirs even though the Illegitimate children get a smaller share vs legitimate children.

Illegitimate children are considered compulsory heirs in the Philippines.

A wife is also a compulsory heir in the Philippines.

As they are both compulsory heirs, they cannot be removed without a valid disinheritance from a will (which is difficult to do.)

So, it is very possible that a wife will inherit along with the illegitimate children.

Let’s do a brief example:

In a 1 million peso estate, the legal spouse would inherit 1/3 of the estate and the illegitimate children would inherit 1/3 of the estate divided among them with the rest going to the free portion when there is a will.

When there is no will, the legal spouse would inherit 1/2 of the estate and the illegitimate children would inherit 1/2 of the estate divided among them.

The amounts change depending on how many children as well.

This can be very complicated, not to mention hard on the heirs.

Often the legal spouse and the heirs do not agree and so what happens is that there are disagreements.

When that happens, then it can be very hard to settle the estate.

Everything can be resolved if everybody maintains an open mind

There is no easy solution for this.

It is possible to bring it to court; however, this is expensive, and it’s always better to compromise with the other side since it’s very hard to settle an estate without agreement.

The main issues that we come across are:

• Fighting among the heirs
• Lack of property documents such as the original title
• Lack of information about second families and other children is often a surprise.

These are very difficult scenarios to address.

The easiest and fastest way to transfer an inheritance to heirs is really when the heirs agree.

When there are disagreements and you have to go to court to resolve them, it can be costly and stressful.

Likewise, when there are no property documents, it can be very hard to replace them or confirm them and in some cases, an estate can be settled for lack of a death certificate.

Unfortunately, there is no law in the Philippines that make common-law wives heirs.

Unfortunately, there is no law in the Philippines that makes common-law wives heirs.

No, there is no common-law wife inheritance in the Philippines.

A common-law wife is not considered an heir.

One of the ways that a common-law wife can inherit is through a will.

A will must be validly created and then must be probated in court.

Most wills are not validly done, so if you are doing this, please consult with a lawyer.

Note also that you have to prove the will in court, meaning that you will need to go to court and pay court filing fees of roughly 2% to the court. So, the filing fee of a 1 million peso estate is about 20,000.

Consider if you wish to do this, as it is a long and costly process.

Another way that a common-law wife can inherit is if she is considered a co-owner.

For these scenarios, it is really best to contact a lawyer to discuss the case since this can be quite difficult.

A wife will go through either a judicial or extrajudicial estate process.

A judicial process means that the case is filed in court.

An extrajudicial process means that the estate can be settled without court, and instead is just processed at the BIR.

I have a very comprehensive post about settling an estate here, since the process is very tiring and requires a lot of work.

In brief, the process is:

1. Secure the Death Certificate and all family documents: Obtain death, birth and marriage documents from the Philippine Statistics Authority (PSA) for all heirs.
2. Get all property documents: The original land titles and the tax declarations must be gathered. They should have no typos. Confirmatory documents should be retrieved from the respective government agencies.
3. File for an Extrajudicial or Judicial Settlement either at the court or the BIR, depending on the situation.
4. Pay Estate Taxes: File the Estate Tax Return (BIR Form 1801) within one year of death to avoid penalties.

Transfer Property & Bank Accounts with the eCAR from the BIR that will allow transfer from the registry of deeds and the city assessors.

Q: If my husband dies, do I need to pay estate tax before I can inherit?

A: Yes, estate tax must be settled before property transfers can occur.?

Q: What if my husband had a second family?

A: Illegitimate children inherit half of what legitimate children receive.?

Q: What happens if my husband’s parents want a share of the inheritance?

A: They only inherit if there are no children.?