Tuesday, May 7, 2013

FAMILY CODE: Non-inclusion in will takes out right of illegitimate child as heir

Dear PAO,
I have a cousin who is born out of wedlock. His father died when he was just 4 years old and his grandparents died a couple of years ago. He is now 32 years old and wanted to know if he can inherit from his father’s share of the estate. His father predeceased his parents and has 3 siblings. The remaining children of his grand­parents transferred the properties only to themselves and left my cousin nothing. Does my cousin have a right on the share of his father?  

Dear Joshua,
Since you mentioned that your cousin was born out of wedlock, it is safe to assume that he is an illegitimate child. Taking this into consideration, the right of your cousin to inherit from his grandparents is affected by his status as an illegitimate child.

Article 992 of the New Civil Code of the Philippines states that:

“An illegitimate child has no right to inherit ab intestate from the legitimate children and relatives of his father and mother; nor shall such children or relatives inherit in the same manner from the illegitimate child.”

Thus, according to the aforementioned law, your cousin cannot inherit from his grandparents except through a last will and testament, known as testamentary succession.

This same law was also cited by the Supreme Court in the case of Leonardo vs. Court of Appeals, 120 SCRA 890, 1983, in ruling that an illegitimate child cannot inherit from his great grandparent for being an illegitimate child.

Note however that, under the nor­mal circumstances, grandchildren may inherit from their grandparents through the right of representation which is provided by law as:

“. . . a right created by fiction of law, by virtue of which the representative is raised to the place and degree of the person represented, and acquires the right, which the latter would have if he were living or if he could have inherited” (Article 970, New Civil Code).

To further illustrate, a grandson with a right of representation subrogates the right of his deceased father to inherit from his grandfather if the father: a) predeceased the grandfather, b) is incapacitated or c) was disinherited (Articles 981, 1035 and 923, New Civil Code). Applying this rule, the inheritance of a grandson shall cover all that his father would have inherited from his grandfather if the latter were alive should the grandfather die intestate, or without a last will and testament.

However this rule applies only to legitimate children. And since it was established that your cousin is an illegitimate child,     the law prohibiting illegitimate children to represent their father’s share in the inheritance from his relatives shall apply.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

source:   Manila Times Column of PAO Chief Atty

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