There are legal disadvantages to being an illegitimate child

Illegitimate children are those who are born out of wedlock. According to the latest study of the Philippine Statistics Authority, there are More than half (906,106 or 54.3%) of the total registered live births in 2018 who was born out of wedlock. This is associated with the high incidence of single parenthood and the prevalence of illegitimate childbearing among young, single, and poor women.

Being an illegitimate child has many legal disadvantages and one of them is the right to inheritance.

This article will discuss why an illegitimate child cannot inherit from a legitimate grandparent ab intestato and the importance of the last will for an estate settlement involving an illegitimate child.

The right of representation doesn’t apply to illegitimate grandchildren

An illegitimate grandchild cannot inherit from a legitimate grandparent unless specifically provided for in a last will and testament.

The Supreme Court answered this very question in Anselma Diaz vs. IAC.[i]

Anselma Diaz was the guardian of four minor children. These were the illegitimate children of Pablo. Pablo himself had died before his mother Simona.

When Simona died, Anselma filed a case for them to claim an inheritance from their deceased grandmother.

Anselma argued that the grandchildren should inherit from their grandmother in representation of Pablo, Simona’s legitimate son.

Representation is a right given by the law of inheritance. Through it, the representative is raised to the place and the degree of the person represented. The representative then acquires the rights which the latter would have if he were living or if he could have inherited.

Anselma thus argued that the grandchildren should inherit from Simona in their father’s place.

But Simona’s niece, Felisa, opposed the grandchildren’s right to inherit. Felisa argued that these illegitimate children could not inherit from their father’s legitimate mother.

The Supreme Court agreed with Felisa. It ruled that Pablo’s illegitimate children could not inherit from their grandmother Simona.

It ruled that a special rule of inheritance applies between illegitimate and legitimate relatives. This rule is Article 992 of the Civil Code:

Article 992. An illegitimate child has no right to inherit ab intestato from the legitimate children or relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.

The Supreme Court said that the right of representation was not available to the illegitimate grandchildren. They could not inherit from their grandmother in the representation of their father Pablo:

The right of representation is not available to illegitimate descendants of legitimate children in the inheritance of a legitimate grandparent. It may be argued, as done by petitioners, that the illegitimate descendant of a legitimate child is entitled to representation by virtue of the provisions of Article 982, which provides that “the grandchildren and other descendants shall inherit by right of representation.” Such a conclusion is erroneous. It would allow intestate succession by an illegitimate child to the legitimate parent of his father or mother, a situation which would set at naught the provisions of Article 992. Article 982 is inapplicable to the instant case because Article 992 prohibits absolutely a succession ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother. It may not be amiss to state that Article 982 is the general rule and Article 992 the exception.

“The rules laid down in Article 982 that ‘grandchildren and other descendants shall inherit by right of representation and in Article 902 that the rights of illegitimate children … are transmitted upon their death to their descendants, whether legitimate or illegitimate is subject to the limitation prescribed by Article 992 to the end that an illegitimate child has no right to inherit ab intestato from the legitimate children and relatives of his father or mother.”‘

Citing old, Spanish authorities, the Supreme Court of the Philippines ruled that there is an “iron curtain” that prohibits absolute inheritance ab intestato between the illegitimate child and the legitimate children and relatives of the father or mother of a said illegitimate child.

They may have a natural tie of blood, but this is not recognized by law for the purpose of Article 992.

Ab intestato means without a last will and testament. Thus, illegitimate children can inherit from the estate of a relative of their legitimate parent only if they are made heirs in a will.

This 1990 case was remarkable because the Supreme Court called upon distinguished civil law experts to submit amicus curiae legal briefs to help it come to a decision. The enlisted legal luminaries included Professor Ruben Balane, retired Justices Jose B. L. Reyes, Eduardo Caguioa, and Ricardo Puno, and former Senator Arturo Tolentino.

The Supreme Court delved into Article 992 and quoted the rather harsh and archaic and sensibilities behind it:

“Between the legitimate family and the illegitimate family there is presumed to be an intervening antagonism and incompatibility. The illegitimate child is disgracefully looked down upon by the legitimate family; and the family is in turn, hated by the illegitimate child; the latter considers the privileged condition of the former, and the resources of which it is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the product of sin, palpable evidence of a blemish broken in life; the law does no more than recognize this truth, by avoiding further ground of resentment.”

In the end, the Supreme Court ruled that it could only apply the law. Unless Article 992 was repealed or changed by Congress, the iron curtain rule barred the illegitimate children from inheriting from their grandmother by way of representation.

The iron curtain rule of inheritance was reaffirmed in later cases.[ii]

The Supreme Court has recently been asked to declare Article 992 unconstitutional, declare Article 992 unconstitutional,  but, unless the law changes, it remains the rule for the illegitimate children of legitimate parents.

[i] G.R. No. L-66574, February 21, 1990.

[ii] Pascual vs. Pascual-Bautista, G.R. No. 84240, March 25, 1992; Manuel vs. Hon. Ferrer, G.R. No. 117246, August 21, 1995.

A Illegitimate grandchild’s may not be included in the settlement of his grandparent’s estate.

As it stands, the iron curtain rule has practical consequences.

It means that the consent of an illegitimate grandchild may not be needed to settle the estate of a grandparent.

For example, let us say that a widowed grandmother has just died.

She’d had five children born of her marriage, four of whom are still living.

One child had died before her, but he was survived by an illegitimate son.

The four living children now want to settle the estate, but the illegitimate grandchild holds out and refuses to agree to a proposed division.

The four living children can go ahead with the division since, under Article 992, the illegitimate grandchild cannot actually inherit from the grandmother.

Since the illegitimate child’s father died before the grandmother, the father himself had not yet come into the inheritance.

Since the grandchild is illegitimate, he cannot inherit from his grandmother in the representation of his deceased father.

This means that the four surviving children need not file a court case to compel the illegitimate grandchild to be bound by a settlement of the estate.

Instead, the four can simply execute an extrajudicial settlement of the estate among them because they are the only heirs.

Note that the extrajudicial settlement of an estate is available only if all the heirs are in unanimous agreement on how the inheritance will be divided. For extended families, this is often not possible because one or some heirs will not agree with others.

But if a dissenting heir is not actually an heir, being illegitimate, then extrajudicial settlement is possible.

This frees the legal heirs from needing a long, drawn-out court case to resolve the inheritance. Instead, they can simply agree among themselves on how to divide the estate.

The only way an illegitimate child can become an heir of his or her grandparent is through a last will and testament

The iron curtain rule means that a last will and testament is absolutely necessary when someone wants to ensure that an illegitimate heir does inherit from a legitimate parent’s relative.

The exclusion in Article 992 speaks of inheritance ab intestato (without a will).

This is important for estate planning, because it means that the illegitimate relatives can inherit if provided for in a will.

A last will and testament should be prepared if a grandparent wants to ensure that these grandchildren can inherit from her. The will should specify their inheritance while also respecting the compulsory shares that the law reserves to other heirs.

The document must comply with the formal and substantive requirements for a last will and testament so that it can stand up in court.

The testator who makes the will should also make provisions for it to be proven in court when he dies, or even before. (A will can be probated even while the testator is still living.)

This is because a last will and testament must be probated in court before it can actually cause the transfer of property from to an heir.

For as long as it stands, the iron curtain rule has to be accounted for in estate planning.

Atty. Francesco Britanico