When one dies single, with no parents or children, he has no compulsory heirs. He can give away by will his estate to anyone. However, if he does not make a will, his brothers and sisters, whether full or half blood, will inherit in equal shares. In the absence of any sibling, succession goes to the next degree of living relatives – grandparents, aunts and uncles, cousins, etc. with those nearest in degree excluding the others.
What is the legitime of a child? It is one half of the estate of the deceased parent. By way of a rough illustration, if a person has P10 million, without parent or spouse but with one child, he can make a will giving P5 million to his child and the other P5 million to charity or he can give all of it to his child. If he does not make a will, all the P10 million will go to his child upon his death. If he had no spouse nor child, legitimate or illegitimate, but his parents survive him, the parents are entitled to the whole estate and each parent gets half. He can make a will, however, limiting his parents to their legitime of one-fourth each while giving the other half to anyone.
Supposing a widower with P10 million is survived by 10 children, and he left no will, each child gets an equal share of P1 million. Otherwise, if he had wanted, he could have made a will giving only P5 million to his 10 children who will then get P500,000 each and giving the other P5 million to anyone.
If a man is survived by a wife and one legitimate child, the wife’s legitime is one-fourth of the estate while that of the child is one-half. Just to illustrate, supposing he and his wife accumulated, during their marriage, properties worth P10 million at the time of his death, said P10 million is conjugal or community property, in which case, P5 million is the wife’s share while the other P5 million will comprise his estate. Out of P5 million estate, his child’s legitime will be P2.5 million while his wife’s will be P1.25 million. The remainder or P1.25 million is the free portion which he could give to charity by making a will. However, if he does not make a will then the sharing of the wife and child to the entire P5-million estate will be P3.5 million to the child and P1.5 million to the wife.
If the heirs are 10 children and a spouse, and assuming the estate is worth P10 million, and there is no will, the P10 million will be divided among the children and spouse in equal shares or P10 million divided by 11 resulting in each getting P909,090.90. However, if the person with P10 million wants to dispose of his free portion, he should make a will limiting his children and wife to their legitime. The result is that one-half of the 10 million will be divided among the 10 children equally or P500,000 each while the wife will get P500,000 from the other half. The balance of P4.5 million is the free portion which the testator can give to any of the children, to his wife, and/or to charity. If he gives all of the free portion to just one child, then the result may be that one child gets P5 million composed of the entire free portion of P4.5 million plus his legitime of P500,000 while the rest of the children, including the wife gets only P500,000 each. This is the kind of situation that may lead to protracted litigation. Surely, the children getting only P500,000 each and/or the wife will contest the will. Their lawyers can use every reason to have the will invalidated or have the deceased declared insane. In the end, everybody may not be able to get anything since the P10 million may have to answer for legal fees or by the time the case is resolved the money has depreciated considerably.
If a man has a wife and no child with her, but has illegitimate children the wife shall be entitled to one third, the illegitimate children to another third, while the remaining third of the estate is the free portion which he may dispose of as he wishes by making a will.
An important provision of the law on succession is that an illegitimate child surviving with a legitimate child is entitled, by way of legitime, to only one/half of the legitime of the legitimate child. Supposing there is no surviving wife but there are five legitimate children and five illegitimate children, and the estate is valued at P10 million, how will the sharing be? Where there is no will, out of the P10 million, the five legitimate children will get P1.2 million each or a total of P6 million while the five illegitimate children will get P600,000 each or a total of P3 million. By way of a will, the five legitimate children may be given just their legitime of P1 million each or P5 million all in all, and the illegitimate children P500,000 each or P2.5 million all in all to be taken from the other half of the P10-million estate. The remainder of the free portion or P2.5 million may be given by the testator to anyone. In fact, he could give all of the free portion to the illegitimate children such that each will get an additional P500,000, thereby increasing an illegitimate child’s share to equal that of a legitimate child.
Where there are more illegitimate children than legitimate children, the legitime of the illegitimate children cannot exceed the free portion which in the above illustration is P5 million. For example, where there is only one legitimate child, he gets P5 million. If there are seven illegitimate children, theoretically each one should get one-half of the legitimate child’s P5 million which is P2.5 million each. But since the total legitime of the illegitimate children should not exceed the free portion of P5 million, each illegitimate child will get only P714,285. The testator cannot diminish the legitime of P5 million of the legitimate child.
Supposing the survivors are: the spouse, five legitimate children, and seven illegitimate children and assume that the estate is worth P10 million. One half or P5 million will be the legitime of the five legitimate children. The wife will get a share equal to one legitimate child, meaning she gets P1 million from the other half of P5 million. The free portion is now only P4 million. Since each illegitimate child is entitled to a legitime of only one-half of that of a legitimate child or P500,000 the total legitime of the seven illegitimate child will be P3.5 million. The balance of P500,000 is the net free portion that the testator can give to anyone by making a will. However, if there is no will, the P500,000 will also be divided among the said heirs with each of the five legitimate children and the spouse getting an amount double that of one illegitimate child.
There are other provisions of law on legitime and numerous variations of the above rough illustrations. As it is, the foregoing is already very confusing to an ordinary person. But if it is any consolation, sometimes even lawyers have a hard time figuring out who gets what, particularly where the estate is composed not only of cash but real and personal properties whose values cannot easily be determined. In fact, most lawyers themselves concede that they are poor in math.
(The author is a senior partner of Abello Concepcion Regala & Cruz Law Offices. She may be contacted at tel. #830-8000; fax #894-4697 or e-mail at: accra@accralaw.com)