Legitime in Testate Succession

The legitime is the portion of the estate to be given to

the compulsory (automatic) heirs. 1/2 of the net estate
goes to the compulsory heirs. The other half is called the
Free Portion. The surviving spouse inherits from the free
portion. What is left after all heirs, including the surviving
spouse, get all their shares is called the disposable free
portion. This disposable portion can be given by the
testator to anybody. These are the shares:

If the survivor of decedent is:

1.) Legitimate children: 1/2 of the estate, divided among

themselves in equal portions (1/2 child and 1/2 free
portion)

2.) Legitimate parents: 1/2 and 1/2 free portion

3.) Illegitimate parents: 1/2 and 1/2 free portion

4.) Surviving spouse: same, but if the marriage

was in articulo mortis 1/3 and 1/2 if living together with
the deceased but celebrated the marriage in articulo
mortis (time of death)

5.) 1 legitimate child and the surviving spouse: 1/2 for

the child and 1/4 for the spouse and ¼ free portion
6.) 2 or more legitimate children and surviving spouse:
1/2 to the children, to be divided equally and the
spouse's share is equal to the share of 1 child and
remainder is free portion

7.) 2 or more legitimate children, the surviving spouse

and illegitimate children: 1/2 for the legitimate children
(divided equally among them,) spouse gets a share equal
to 1 legitimate child's and each illegitimate child gets a
share of 1/2 of a legitimate child and remainder is free
portion

8.) Legitimate parents and surviving spouse: parents get

1/2, spouse gets ¼ and ¼ is free portion

9.) Illegitimate parents and surviving spouse: both get

1/4 each, illegitimate parents divide the 1/4 among
themselves and 2/4 is free portion

10.) Surviving spouse and illegitimate children: both get

1/3 each, but illegitimate children divide the 1/3 among
themselves and 1/3 is free portion

11.) Legitimate parents, illegitimate children and

surviving spouse: parents get 1/2 (to be divided among
themselves) spouse gets 1/8 and illegitimate children get
1/4 (also to be divided among themselves), remainder is
free portion

The remaining free portion after the division can be

given by the testator to anybody.
ILLUSTRATION
***************************************************************************
When one dies single, with no parents or children, he has no
compulsory heirs.
He can give away by will his estate to anyone.

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.

Supposing a widower with P10 million is survived by 10 children,

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.
***************************************************************************
If the heirs are 10 children and a spouse, and assuming the
estate is worth P10 million, and 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?
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.