MODULE 2 – LEGITIMES

3 Kinds of Succession in the Civil Code

1. Forced Succession/ the System of Legitimes
2. Testamentary Succession – the kind that takes place by way of a valid will
3. Legal/Intestate Succession – succession absent a valid will

The Forced Succession is considered the most SUPERIOR, because in the system of legitimes,
the expressed desires or intentions of the testator are completely disregarded. In fact, legitimes
are imposed by law upon the testator so that a person making a will must always keep in mind
the legitimes of the compulsory heirs. Otherwise, the will is validated in part or in whole.

In speaking of the system of legitimes, LEGITIMES must be understood in THREE (3) meanings.

1. Legitime as property - refers tangible or intangible property, real or personal property,

that may be actually given and delivered to a compulsory heir as the share in the
hereditary estate, so that even if the law assigns for example to a compulsory heir a
legitimate child ½ of the hereditary estate, that ½ may in fact pertain to books, old
motor vehicles, or a bit of cash. Legitime as property is an offshoot or product of the
partition of the hereditary estate.

2. Legitime as an intangible right - inures to the benefit only of forced or compulsory

heirs. As an intangible right, legitime is subject to 3 characteristics provided by law:

a. Non-deprivation – This means that compulsory heirs cannot be totally left out of
the hereditary estate. A will that is possessed of the entire inheritance to persons
who are not compulsory heirs and leaves out or omits the compulsory heirs will be
considered as a void testamentary provision. In law, we call it as preterition.

b. Non-impairment/diminution – So any testamentary division or even any

donation inter vivos made prior to death of testator that would have the effect of
reducing the compulsory heirs to below their lawful share will be nullified, either
totally or partially. Inofficous donation intervivos or inofficious testamentary
divisions cannot be given complete effect if the result would be to injure the
legitimes of the compulsory heirs.

c. That there can be no valid contract involving future legitime – Any right to
the legitime comes about only after death. This is one of the essential
characteristics of that intangible right to the legitime. It is a mere expectancy or
an inchoate right prior to the death of testator or decedent. That’s why even if you
are the only child of a wealthy family, prior to death, you cannot enter into any
contract for sale, alienation or encumbrance of their property while they are still
alive because that will be a void transaction. Succession has not yet opened, and
if the object involves a property that is part and parcel of the estate of a person
while still alive and that the party to a contract has a mere expectancy over such
property, then the contract is considered null and void.

3. Legitime as an aliquot fraction or a share in the hereditary estate – In computing

the hereditary estate, we need to know first the compulsory heirs.

a. Primary forced heirs - are those who are called to the succession to the legitime
for as long as they are alive, willing, and capacitated to inherit at the time of death
of testator.

b. Secondary forced heirs - only inherit the legitime or called upon by law to inherit
the legitime in the absence of one or some of the classes of primary forced heirs.
 So that they inherit the legitime only in default of one or some classes of primary
forced heirs.

- Between the primary and secondary forced heirs, their right to the inheritance is
governed by two opposite principles:

1. The principle of concurrence – the presence of one class of compulsory heir will
not prevent another class or other classes from inheriting simultaneously. Example:
Legitimate children inheriting with the spouse (they concur as compulsory heirs).

2. The principle of exclusion – the presence of one class of compulsory heirs will bar
or prevent another class from inheriting the legitime. Example: Legitimate children
and parents or other descendants of the same testator or decedent. The mere fact
that the testator died with legitimate children means that none of those in the
ascending line of the testator can claim the legitime. They are barred from inheriting
for as long as there is an heir within the class known as legitimate children or their
descendants.

Legitimate children or their descendants (or for common reference: LCDs)

- We speak of legitimate children of the testator whether born during the marriage of the
testator with his first or with his second or third spouse. It doesn’t matter which marriage
they came from for as long as the marriage of the testator was a VALID one and that
the all the valid marriages produced legitimate children of the testator and they belong
to the same class. The law does not discriminate whether they come from the first or
second marriage.

- This class also includes descendants of the testator – they must be legitimate children
of the legitimate children of the testator. They must be legitimate descendants and they
inherit not in their own right but only by right of representation. They step in to the shoes
of the person they are representing because the latter died ahead of the testator
(predeceased) or incapacitated to inherit from the testator or was validly disinherited by
the testator.
o So that if the testator has 3 LC – A, B, C, but C died ahead, testator died in 2018
but C died in 2015. At the time of death of C, C had legitimate children C 1 and C
2. So when the testator died in 2018, C1 and C2 will inherit the legitime that would
have gone to C had C been alive when the testator died.

o Descendants only inherit by right of representation. In doing so, they inherit per
stirpes, meaning the division of the legitime of the person represented. If C’s
legitime is 6M, the per capita share or the original share of the compulsory heir.
But since C died ahead of testator, C1 and C2 will have to divide between and
among themselves the 6M so that the per stirpe share of C1 would be 3M and C2
is another 3M.

o The rule is that the per stirpe shares of the representatives when taken together
cannot go beyond the per capita share of the person that they represent.

o When all legitimate children of the same testator either died ahead or became
incapacitated or disinherited or repudiated, then those next in degree: the
grandchildren, the great grandchildren and so on and so forth will no longer inherit
by right of representation but will inherit in their own right.

o Make a distinction among all other descendants of the testator whether they
inherit by right of representation because the person that they are representing
died ahead or incapacitated or disinherited, these representative or further
descendants must concur with other legitimate children of the testator.
 o Thus, in the example, C1 and C2 will concur with A and B (their aunts or uncles).
If A, B, and C all died ahead or all were disinherited or were incapacitated to inherit
and A and B had no grandchildren or children or other descendants. Then C1 and
C2 will step in and inherit in their own right. That’s the meaning of LCDs.

- LC is found in the Family Code. Legitimacy of children is always anchored on the validity
of the marriage of the parents. However, include under the class of LCDs your legitimated
children as well as adopted children because adopted children and legitimated children
enjoy raised and improved status under the law.

WHO ARE THE OTHER PRIMARY FORCED HEIRS?

- Second in rank among the primary forced heirs would be the surviving spouse.
- Unlike LCDs which may count to one or one hundred of the same testator if prolific or
fertile, for purposes of the legitime there should only be ONE widow or widower entitled
thereto.
- So that if there are allegations that the testator contracted subsequent or multiple
marriages during his lifetime was a bigamist or polygamist then go back the rule in the
Family Code: ONLY THE FIRST MARRIAGE is considered a valid one and ALL
SUBSEQUENT marriages are considered void. Therefore only the spouse in the first
marriage would be entitled to the legitime. The second or third or fourth spouse would
be considered as strangers who cannot inherit from the legitime of the testator.
- So one unique characteristic of the widow or widower as a class of forced heir is that
there is no co-heir. There is always only one person or one individual who will inherit
under that class.

- The third in rank among the primary forced heirs is the illegitimate children and their
descendants.
- Illegitimate descendants of the testator will inherit the legitime only if the filiation is
unquestioned or filiation is proved. Unlike LC whose filiation need not be proven because
it is declared by law, in the case of ILC, for them to claim successional rights with respect
to their putative parents, they need to establish their filiation, because it their filiation
that serves as their title to the inheritance. Thus, go back to the Family Code as to the
proof of illegitimate filiation and when an action for compulsory recognition may be filed.
- IF an illegitimate child claims to be the child of a particular testator but cannot establish
proof of filiation whether by compulsory or voluntary means as provided by Article 172
of the FC, then he or she is not entitled to the legitime.
- That is the kind of burden that the law places on ILC before they can claim any familial
connection whether for support or successional rights with any person, they are required
by law to establish their filiation.
- Going back to the FC, one persistent challenge: one proof of filiation is birth record, final
judgment, or any authentic writing that is personally signed by the putative parent
containing any voluntary acknowledgment.
- QUESTION: can a putative parent recognize his or her ILC after death of the latter? For
a child to claim filiation with his or her putative parent, there are prescriptive periods
(see Family Code). On the other hand, there is no provision in law imposing a prescriptive
period for voluntary acknowledgment. Therefore, when for purpose of creating familial
tie (successional purposes), when can the parent of the ILC recognize the ILC? This
question will be relevant in another part of this lecture.

SECONDARY FORCED HEIRS

- The secondary forced heirs ALWAYS inherit ONLY in the absence of a class of primary
forced heirs. So they inherit in default of or in lieu of one class of primary forced heirs.

- If the testator is a legitimate person, born and conceived during valid marriage, the
secondary forced heirs would be the parents or other ascendants.
 - They only inherit from the legitimate testator if the legitimate testator died without any
LCDs. (This is the PRINCIPLE OF EXCLUSION)

- So the parents and ascendants (LPAs) will only inherit the legitime if the testator is a
legitimate person, and he or she died without any LCDs.

- On the other hand, if the testator was an illegitimate person (status of testator is material
here: born outside of marriage or valid marriage of the parents), then the secondary
compulsory heirs of the ILLEGITIMATE testator would be the parents ONLY (mother or
father or BOTH). Why is that so? Because of the principle of IRON BARRIER RULE. This
applies also to those who inherit by right of representation.

- In the case of illegitimate decedent or testator, the secondary forced heirs cannot
embrace the other ascendants because there is danger that there will be a mixing of the
legitimate with the illegitimate line.

- The purpose of the Iron Barrier Rule is to draw a clear curtain that will divide and
therefore prevent inheritance between the legitimates on one hand and the illegitimates
on the other hand.
- Therefore, if the testator is an illegitimate person and dies without any legitimate children
or ILC or descendants (descending line is completely vacant), that’s the time that the
parent: illegitimate mother or father will be called to the legitime.

- If the testator died without an illegitimate mother or father (because they died ahead),
then the other ascendants, grandmother, grandfather, great grandparents can no longer
inherit because of the Iron Barrier Rule.

Ultimate Objective: determine whether or not the will executed by the testator encroaches on
the legitimes and that the purpose is to preserve the legitimes.

COMPUTATION OF LEGITIMES
- Keep in mind that whenever testator dies with unpaid obligations, the distribution of the
hereditary estate must be first and foremost in favor of the creditors
- Even if there is nothing left after creditors are paid, there is no use in computing the
shares in the hereditary.
- Whenever there is residual estate after deducting the unpaid obligations from the gross
estate, then computations of the share in the hereditary estate arise.
- Challenge: identifying compulsory heirs.

- Compulsory heirs are limited to the relatives by consanguinity in the direct line. By direct
line, the law prefers those in the direct DESCENDING line (children, grandchildren, great
grandchildren) and those in the direct ASCENDING line (parents, grandparents)
- However, between the direct descendants and the direct ancestors of the testator, the
law on legitimes prefers those in the descending line (younger generation). Parents and
other ascendants are secondary compulsory heirs.
- The only compulsory heir who is not a relative by consanguinity of the testator is his or
her spouse.

- Within those groups or classes of compulsory heirs, there is a need to determine who
among them are actually entitled because the legitime can only be given to those who
are alive, willing, and capacitated at the time of death of the testator.

Example:
- Suppose the testator (T) was survived by the wife (W) with who the testator had 3
children: A, B, and C (legitmate children).
- A is married to D: they have 3 children (A1, A2, and A3).
 - B is single and unmarried.
- C had an illegitimate child born out of wedlock: C1.
- A, B, C (the children are one degree separate from T)
- A1, A2, A3, and C1 are the grandchildren, 2 degrees separated from T
- Assume further that when T was younger, he had an extramarital affair with L and during
that affair with L: L gave birth to a child, X
- T was also survived upon death by his parents: mother (M) and Father (F)
- Believe it or not, it may also happen that the testator was also survived by the maternal
grandparents: GM and GF
- All of these people claim to inherit the legitme

- In this instance, the presence of legitimate children of the testator will EXCLUDE the
ascending line.
- So M, F, GM, and GF cannot inherit the legitime.
- On the other hand, of the remaining relatives of the testator, X claims to be an
illegitimate child of the testator.
- For an illegitimate child to inherit legitime, the filiation must be proved in accordance
with the Family Code. That is why X has the burden of showing that T recognize either
by voluntary means or through compulsory means (by judicial action) so that filiation is
established.
- For all compulsory heir claiming the legitime, their title to the inheritance is their legal
relationship.
- If X cannot establish his filiation with T, then X is a complete stranger. Therefore, not
entitled as compulsory heir.
- Assume that X’s filiation is proved. It is only in this instance that X should be included
as compulsory heir.

In this situation, assume that T left behind net hereditary estate worth 24,000,000,000 (24M):
How do we compute and distribute the legitime?
- In the hierarchy or order of payment that the law requires,
1. LCDs first – by law, they are entitled as a group or class, to one-half (1/2) of the entire
hereditary estate: P12M. The per capita share of each LC
A – P4M
B – P4M
C – P4M remaining estate: P12M (24M–12M)

2. Surviving spouse (the most variable of all legitimes) – if surviving spouse concurs with
only one (1) LC, the surviving spouse gets one-fourth (1/4) of the whole. But if the
surviving spouse revives with several LC as in the example, then the surviving spouse
gets a share equal to the LC.
SS (W) gets a share to that of one LCD:
W – P4M remaining estate: P8M (12M – 4M)

3. But we have another heir: X. Remember that an ILC is entitled to inherit once the filiation
is proved. For common reference ILC or their descendants: ICDs. When an ILC concurs
with LC of the testator, go back to Family Code. The FC states that the legitime of an ILC
is one-half (1/2) of the share of one (1) LC. Since share of each LC is P4M,
X – ½ of the share of 1 LC
X – P2M remaining estate: P6M (8M – 2M)

4. The FREE DISPOSABLE PORTION is P6M. Therefore, the will left behind by the testator
should be applied only to the P6M. So the voluntary and testamentary heirs can claim
only the P6M. If the testamentary dispositions exceed P6M, those will be reduced and
annulled in order to keep the legitimes intact.
Now, a question might arise. In the earlier example, A1, A2, and A3 are grandchildren of the
testator. What if at the time of death of the testator, A has already died. So the legitime of A
which is P4M would have now to pass to A1, A2, and A3 by right of representation.
- Representatives inherit only per stirpes, meaning, divide the P4M equally among A1, A2,
and A3.
- But if A died ahead or was disqualified, or was disinherited: A1, A2, and A3 will step into
the shoes of A.

Question: What if it was C who died ahead, was disqualified, or was disinherited by the testator?
Can C1 step into the shoes of C by right of representation?
- This is where the IRON BARRIER RULE will apply. Under this rule, there must be a
complete separation between the legitimates and the illegitimates and they cannot
inherit from one another.
- Since C1 is an illegitimate descendant of the testator, C1 cannot represent C in the
succession of T.
- That is why the share of C cannot be represented in the estate of T. What will happen to
the share of C because it cannot pass by right of representation to C1?
- That P4M legitime will now pass to the co-heirs: A and B. The P4M of C will be divided
between A and B: co-heirs in their own right will get the share of another co-heir who
died ahead (or was disqualified or was disinherited) and has NO qualified representative.

To illustrate further the Iron Barrier Rule, what if it is X who had died ahead or was declared
disqualified or incapacitated, or was disinherited?
- Remember the right of representation in the legitime goes further in the descending line.
- Let’s assume further that X had legitimate child X1 and an illegitimate child X2. So X1 is
a LC of illegitimate X and X2 is an ILC if illegitimate X. If X dies ahead, disqualified or
disinherited, who can represent X in the succession of T?
- Since X is an illegitimate, there is NO Iron Barrier Rule to speak of. There is no legitimate
line that must be kept pristine and protected from the illegitimates.
- That’s why both X1 and X2 are entitled to represent X in the estate of T.

Illustration:
If T, the testator had a legitimate child A and an illegitimate child X
Then A has legitimate child A1, but also has an illegitimate child A2.
X has legitimate child X1 and illegitimate child X2.

- Here, who can represent and who cannot represent?

Since A is a legitimate child, take note that A can ONLY be represented by another legitimate
descendant.
- Under the Iron Barrier Rule, A2 cannot represent A in the succession of T.

On the other hand, in the case of X who dies ahead or predeceases (becomes disqualified or
incapacitated) – there is NO Iron Barrier Rule in an illegitimate line.
- Therefore both X1 and X2 can represent X in the estate of T.
- That is how the right of representation applies.

Certain problem areas that may arise in the distribution of legitimes

Common problem that arises is how much will be the share of illegitimate children if their
number is greater than legitimate children?
- Keep in mind that LCDs are entitled to the first ½ of the hereditary estate whether they
survive alone or concur with the other classes. It is a fixed legitime. The law assigns to
LCDs the first ½ of the estate (fixed ½).
- If LCDs concur with ICDs? FC: ILC is ½ of the share of LC

Example:
Testator Y left behind an estate worth P24M. T was survived by only 1 LC, A. However, T was
also survived by several ICDs (whose filiation with the testator is proved): X, Y, Z. If we
distribute the legitimes:
1. A – P12M (½ of P24M) remaining estate: P12M
2. Family Code again says that the share of ILC is ½ the share of one LC. If share of A is
P12M, logically, the share of each ILC should be P6M (1/2 the share of LC), but there are
three (3) ILC. If they will be given P6M each, that would be a total of P18M where the
only estate left is P12M. It is a mathematical impossibility. There is no P18M estate left.
It is only P12M.
- By force, we have to reduce the shares of ILDs to whatever is left in the estate. We
cannot follow strictly the Family Code.
- The P12M will have to be distributed equally to the ICDs. Therefore, their individual
shares is: P12M/3
X – P4M
Y – P4M
Z – P4M
3. Although P4M is NOT ½ of what was given to A, it is the only fair distribution of the
remaining estate. This one way discrimination takes place against ICDs. Because they
get paid last in the estate. They satisfy themselves of whatever is left in the estate.
- The rule is that: we cannot reduce the legitime of the LCDs below the fixed ½ assigned
by law.

Example:
Assume that testator T died without any children or descendants whatsoever. The only relatives
of T are the Mother (M) and the Father (F). In this case, the legitime for LPAs will go to them
as a group, but it will have to be divided between the M and F equally. Therefore, if the net
estate of T is P24M, by law, the legitime of LPA surviving alone is ½ so that ½ is P12M (P24M/2),
assigned to them as a group:
M and F – P12M (this will be divided equally to them so:
M – P6M
F – P6M remaining estate of P12M will be the free disposable portion

- But what if at the time of death of T there were other ascendants?

Maternal grandparents GM and GF
Paternal grandparents GM and GF
There are 6 in the ascending line
** When there are several ascendants of different degrees of relation to the testator, we apply
the RULE OF PROXIMITY – the nearest ones exclude the remoter ones. This is another
application of principle of exclusion.
** So the grandparents of T cannot claim the legitime because M and F are alive at that time
when T died.

- But what if at the time of death of T, F had already gone ahead to heaven.
So the remaining estate, following the rule of proximity, the nearest excludes the remoter ones:
M gets the entire P12M.
- Can the paternal grandparents of F claim the right of representation in order to demand
legitime?
There is no right of representation in the ascending line and that is an immutable principle in
the law on succession whether for legitimes or intestacy. Thus, rule of proximity prevails.
Mother gets all share of the legitime.

- But what if at the time of death of T, both parents (M and F) have died ahead. So T was
survived by both grandparents: paternal and maternal side.
o In this case, the P12M will be divided equally between the maternal and paternal
side and within each line, divide equally among the qualified survivors.
o So P6M will be divided between the maternal GF and GM (P3M each).
o P6M on the paternal side will be divided in the same way: GM and GF (P3M each)
 o P6M to maternal GP
GF – P3M
GM – P3M
o P6M to paternal GP
GF – P3M
GM – P3M

- But what if at the time of death of T, paternal GF died ahead?

o Again, maternal and paternal divide equally the P12M
o Maternal side: GM and GF (P6M)
GF – P3M
GM – P3M
o Paternal side: GM (P6M) since there is only one survivor in the paternal line, the
only survivor there gets the entire share assigned for that line. Therefore paternal
side:
GM – gets P6M

Another problem area: (but not yet decided by SC so far)

- The case of an illegitimate testator.
There is really no difference between the primary forced heirs of an illegitimate as well as a
legitimate testator. The LCDs, the spouse, and the ICDs. So whenever the legitimate or
illegitimate testator is survived by the LCDs, spouse, and ICDs, whether surviving alone or
concurring with another, then the estate must be distributed to them alone and in the same
shares as prescribed by the Civil Code.

- The problem will arise in the secondary forced heirs.

For a legitimate testator, the secondary forced heirs would be the legitimate parents or other
ascendants whenever the legitimate testator dies without any LCDs. Thus, the LPAs may survive
alone or would concur with the spouse and/or ICDs.

In the case of an illegitimate testator, the rules are substantially different and the difference
may be explained by the adherence to the Iron Barrier Rule or the Iron Curtain Rule or the Wall
of Complete Separation between the legitimates and the illegitimates (Article 992, NCC)
- Whenever an illegitimate testator dies without any children or descendants whatsoever,
that’s the only time that the secondary forced heirs are called to inherit the legitime. So
only if the descending line is completely absent. No children whether LC or ILC,
grandchildren, etc.
- Who is the secondary forced heir? As a rule, only the recognizing parent of the illegitimate
testator and we presume that the ONLY known parent of that illegitimate person the time
of birth, is the mother.
- Therefore if the illegitimate testator dies without any children whatsoever (no one in the
descending line), then the mother is called upon to inherit the legitime whether surviving
alone or concurring with the spouse of the illegitimate testator.
- Question: How about the father? As you know in illegitimate filiation, there is no legal
tie between ILC and the father unless the father has acknowledged the illegitimate
testator or ILC, whether voluntary or compulsory means. Without such acknowledgment
in accordance with the FC, the two are considered strangers with another.
- Let’s assume that acknowledgment has made. Therefore, the secondary forced heirs of
the illegitimate testator would now include both mother and father. The law assigns to
them as a class, ½ of the hereditary estate.
- If secondary forced heirs concur with the spouse of the testator, then the secondary
forced heirs M and/or F will get only ¼ and then divide the ¼ between them.

** Because of the Iron Barrier Rule, no other ascendants can inherit or claim the legitime from
the illegitimate testator.
 - Therefore, unlike in the case of a legitimate testator where outside of the parents, the
further ascendants can claim the legitime: that will NOT happen in the case of an
illegitimate testator.
- - So the succession to the legitime in the ascending line for an illegitimate testator is
limited to the mother and father.

Other problem: It was said that for the father to inherit from the ILC, the father and the ILC
must have a legal relationship through acknowledgement.

Because of the stigma suffered by ILC, usually they are raised in secrecy especially of the
putative father is married to another woman and has a legitimate family.
- What if during the lifetime of illegitimate testator, the father refused to acknowledge
him? And then the ILC died leaving property. Can the father acknowledge illegitimate
paternity after the death of the ILC?
- There is really no rule that we can rely on to answer that. Explore this possibility. CAN
THE FATHER OF AN ILC ACKNOWLEDGE THAT CHILD AFTER THE ILC HAS DIED FOR
PURPOSE OF INHERITING AS A SECONDARY FORCED HEIR?