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D. Provisions Common to Testate and Intestate Succession

1. Right of accretion


1) Definition

Accretion is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or co-legatees. (Article 1015, Civil Code)

2) Requirements

In order that the right of accretion may take place in a testamentary succession, it shall be necessary:

1) That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and

2) That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it. (Article 1016, Ibid.)

3) Terms

The words “one-half for each” or “in equal shares” or any others which, though designating an aliquot part, do not identify it by such description as shall make each heir the exclusive owner of determinate property, shall not exclude the right of accretion. (Article 1017, Ibid.)

In case of money or fungible goods, if the share of each heir is not earmarked, there shall be a right of accretion. (Paragraph 2, Article 1017, Ibid.)

4) Repudiated shares

In legal succession the share of the person who repudiates the inheritance shall always accrue to his co-heirs. (Article 1018, Ibid.)

5) Same proportion as they inherit

The heirs to whom the portion goes by the right of accretion take it in the same proportion that they inherit. (Article 1019, Ibid.)

6) Succeed to all rights and obligations

The heirs to whom the inheritance accrues shall succeed to all the rights and obligations which the heir who renounced or could not receive it would have had. (Article 1020, Ibid.)


1) Accretion to free portion only

Among the compulsory heirs the right of accretion shall take place only when the free portion is left to two or more of them, or to any one of them and to a stranger. (Article 1021, Ibid.)

2) Repudiated legitime, no accretion

Should the part repudiated be the legitime, the other co-heirs shall succeed to it in their own right, and not by the right of accretion. (Paragraph 2, Article 1021, Ibid.)


1) Vacant portion to legal heirs

In testamentary succession, when the right of accretion does not take place, the vacant portion of the instituted heirs, if no substitute has been designated, shall pass to the legal heirs of the testator, who shall receive it with the same charges and obligations. (Article 1022, Ibid.)

2) Devisees, legatees, usufructuaries

Accretion shall also take place among devisees, legatees and usufructuaries under the same conditions established for heirs. (Article 1023, Ibid.)

2. Capacity to succeed by will or intestacy


1) Requirements

a) Not incapacitated by law

Persons not incapacitated by law may succeed by will or ab intestato. (Article 1024, Ibid.)

The provisions relating to incapacity by will are equally applicable to intestate succession. (Paragraph 2, Article 1024, Ibid.)

b) Living at the moment succession opens – with exception

In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. (Article 1025, Ibid.)

(1) Conceived child at time of decedent’s death

A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in Article 41. (Paragraph 2, Article 1025, Ibid.)

For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (Article 41, Ibid.)

2) Entities as heirs in testamentary disposition – with exception

A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes.(Article 1026, Ibid.)

All other corporations or entities may succeed under a will, unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same. (Paragraph 2, Article 1026, Ibid.)

3) Law of the nation of the decedent

Capacity to succeed is governed by the law of the nation of the decedent. (Article 1039, Ibid.)


1) In general

The following are incapable of succeeding:

1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period;

2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong;

3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid;

4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children;

5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;

6) Individuals, associations and corporations not permitted by law to inherit. (Article 1027, Ibid.)

2) By reason of unworthiness

The following are incapable of succeeding by reason of unworthiness:

1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue;

2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;

3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;

4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation;

5) Any person convicted of adultery or concubinage with the spouse of the testator;

6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made;

7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter’s will;

8) Any person who falsifies or forges a supposed will of the decedent. (Article 1032, Ibid.)

3) Void dispositions

A testamentary provision in favor of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void. (Article 1031, Ibid.)

a) If w/ knowledge of unworthiness at time of will-making

The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. (Article 1033, Ibid.)

4) When to judge capacity

a) In general – at time of death

In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion. (Article 1034, Ibid.)

b) Final judgment

c) Expiration of month

In cases falling under Nos. 2, 3, or 5 of Article 1032, it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report. (Paragraph 2, Article 1034, Ibid.)

d) Time of compliance

If the institution, devise or legacy should be conditional, the time of the compliance with the condition shall also be considered. (Paragraph 2, Article 1034, Ibid.)

5) If person excluded is a child/descendant

If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime.(Article 1035, Ibid.)

The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. (Paragraph 2, Article 1035, Ibid.)

6) Excluded heir

a) Alienation

b) Administration

Alienations of hereditary property, and acts of administration performed by the excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir.(Article 1036, Ibid.)

c) Right to indemnity

The unworthy heir who is excluded from the succession has a right to demand indemnity or any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate. (Article 1037, Ibid.)

d) Obligation to return property with accessions

e) Liability for fruits and rents

Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together it its accessions.(Article 1038, Ibid.)

He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence. (Paragraph 2, Article 1038, Ibid.)

7) Action for declaration of incapacity, recovery of inheritance: The 5-year prescription

The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession. (Article 1040, Ibid.)


1) Donations inter vivos

The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. (Article 1028, Ibid.)

The following donations shall be void:

1) Those made between persons who were guilty of adultery or concubinage at the time of the donation;

2) Those made between persons found guilty of the same criminal offense, in consideration thereof;

3) Those made to a public officer or his wife, descedants and ascendants, by reason of his office. (Article 739, Ibid.)

In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. (Paragraph 2, Article 739, Ibid.)

2) For prayers and pious works

Should the testator dispose of the whole or part of his property for prayers and pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court’s approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013. (Article 1029, Ibid.)

3) For poor in general

Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise.(Article 1030, Ibid.)

The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary.(Paragraph 2, Article 1030, Ibid.)

The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality. (Paragraph 3, Article 1030, Ibid.)

3. Acceptance and repudiation of the inheritance


1) Who may accept

a) Any person

Any person having the free disposal of his property may accept or repudiate an inheritance. (Article 1044, Ibid.)

b) Parents or guardians

Any inheritance left to minors or incapacitated persons may be accepted by their parents or guardians. Parents or guardians may repudiate the inheritance left to their wards only by judicial authorization. (Paragraph 2, Article 1044, Ibid.)

c) Designated by testator

The right to accept an inheritance left to the poor shall belong to the persons designated by the testator to determine the beneficiaries and distribute the property, or in their default, to those mentioned in Article 1030. (Paragraph 3, Article 1044, Ibid.)

d) Lawful representatives of entities – except for repudiation requiring court approval

The lawful representatives of corporations, associations, institutions and entities qualified to acquire property may accept any inheritance left to the latter, but in order to repudiate it, the approval of the court shall be necessary.(Article 1045, Ibid.)

e) Public officials with Government approval

Public official establishments can neither accept nor repudiate an inheritance without the approval of the government. (Article 1046, Ibid.)

f) Married woman

A married woman of age may repudiate an inheritance without the consent of her husband. (Article 1047, Ibid.)

g) Deaf-mutes

Deaf-mutes who can read and write may accept or repudiate the inheritance personally or through an agent. Should they not be able to read and write, the inheritance shall be accepted by their guardians. These guardians may repudiate the same with judicial approval. (Article 1048, Ibid.)

2) Voluntary and free act

The acceptance or repudiation of the inheritance is an act which is purely voluntary and free. (Article 1041, Ibid.)

3) Retroactive to moment of death

The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. (Article 1042, Ibid.)

4) Certainty of death and right to inheritance

No person may accept or repudiate an inheritance unless he is certain of the death of the person from whom he is to inherit, and of his right to the inheritance. (Article 1043, Ibid.)

5) Transmitted to heirs

If the heir should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs. (Article 1053, Ibid.)

6) Multiple heirs

Should there be several heirs called to the inheritance, some of them may accept and the others may repudiate it. (Article 1054, Ibid.)

7) Heir by will and intestate heir

If a person, who is called to the same inheritance as an heir by will and ab intestato, repudiates the inheritance in his capacity as a testamentary heir, he is understood to have repudiated it in both capacities.(Article 1055, Ibid.)

Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity. (Paragraph 2, Article 1055, Ibid.)

8) Irrevocable – with exception

The acceptance or repudiation of an inheritance, once made, is irrevocable, and cannot be impugned, except when it was made through any of the causes that vitiate consent, or when an unknown will appears. (Article 1056, Ibid.)


1) How acceptance is made

Acceptance may be express or tacit. (Article 1049, Ibid.)

a) Express acceptance

An express acceptance must be made in a public or private document. (Paragraph 2, Article 1049, Ibid.)

b) Tacit acceptance

A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir. (Paragraph 3, Article 1049, Ibid.)

(1) Acts of mere preservation or provisional administration

Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. (Paragraph 4, Article 1049, Ibid.)

2) When deemed accepted

An inheritance is deemed accepted:

1) If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them;

2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co-heirs;

3) If he renounces it for a price in favor of all his co-heirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted.(Article 1050, Ibid.)

Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance.(Article 1057, Ibid.)

If they do not do so within that time, they are deemed to have accepted the inheritance. (Paragraph 2, Article 1057, Ibid.)


1) How made

The repudiation of an inheritance shall be made in a public or authentic instrument, or by petition presented to the court having jurisdiction over the testamentary or intestate proceedings. (Article 1051, Ibid.)

2) If prejudicial to creditors of heirs

If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir.(Article 1052, Ibid.)

The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong. (Paragraph 2, Article 1052, Ibid.)

4. Collation


Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. (Article 1061, Ibid.)

1) Include in Collation

a) Collation in general (as defined above)

b) Donor expressly provided to include in collation

(1) Property left by will

Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. (Article 1063, Ibid.)

(2) Professional, vocation, career – with exceptions

Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. (Article 1068, Ibid.)

c) Collation over covered properties of parents of grandchildren

When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property. (Article 1064, Ibid.)

d) Collation of over covered properties of grandchildren – with exception

The grandchildren shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced. (Paragraph 2, Article 1064, Ibid.)

e) Debts of children, election expenses, fines, etc.

Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar expenses shall be brought to collation. (Article 1069, Ibid.)

f) Inofficious wedding gifts consisting of jewelry, clothing, outfit – with exception

Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will.(Article 1070, Ibid.)

The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed. (Article 1071, Ibid.)

Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee. (Paragraph 2, Article 1071, Ibid.)

2) Excluded from collation

a) Donor expressly provided to exclude from collation

Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. (Article 1062, Ibid.)

The grandchildren shall also bring to collation all that they may have received from the decedent during his lifetime, unless the testator has provided otherwise, in which case his wishes must be respected, if the legitime of the co-heirs is not prejudiced. (Paragraph 2, Article 1064, Ibid.)

b) Donee repudiates inheritance – with exception

Collation shall not take place if the donee should repudiate the inheritance, unless the donation should be reduced as inofficious. (Article 1062, Ibid.)

c) Property left by will – with exception

Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. (Article 1063, Ibid.)

d) Donations to grandchildren from parents’ ascendants

Parents are not obliged to bring to collation in the inheritance of their ascendants any property which may have been donated by the latter to their children. (Article 1065, Ibid.)

e) Donations to spouses – with exception

Neither shall donations to the spouse of the child be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. (Article 1066, Ibid.)

f) Support, education, medical attendance, etc.

Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. (Article 1067, Ibid.)

g) Professional, vocation, career – with exceptions

Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. (Article 1068, Ibid.)

h) Wedding gifts consisting of jewelry, clothing, outfit – with exception

Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will.(Article 1070, Ibid.)

The same things donated are not to be brought to collation and partition, but only their value at the time of the donation, even though their just value may not then have been assessed.(Article 1071, Ibid.)

Their subsequent increase or deterioration and even their total loss or destruction, be it accidental or culpable, shall be for the benefit or account and risk of the donee. (Paragraph 2, Article 1071, Ibid.)


1) Donation to both parents

In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance. (Article 1072, Ibid.)

2) Equitable reduction and addition

The donee’s share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality.(Article 1073, Ibid.)

Should the provisions of the preceding article be impracticable, if the property donated was immovable, the co-heirs shall be entitled to receive its equivalent in cash or securities, at the rate of quotation; and should there be neither cash or marketable securities in the estate, so much of the other property as may be necessary shall be sold at public auction. (Article 1074, Ibid.)

If the property donated was movable, the co-heirs shall only have a right to select an equivalent of other personal property of the inheritance at its just price. (Paragraph 2, Article 1074, Ibid.)

3) Fruits and interest of the property

The fruits and interest of the property subject to collation shall not pertain to the estate except from the day on which the succession is opened.(Article 1075, Ibid.)

For the purpose of ascertaining their amount, the fruits and interest of the property of the estate of the same kind and quality as that subject to collation shall be made the standard of assessment. (Paragraph 2, Article 1075, Ibid.)

4) Reimbursements for preservation of the property

The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value.(Article 1076, Ibid.)

The donee who collates in kind an immovable which has been given to him must be reimbursed by his co-heirs for the improvements which have increased the value of the property, and which exist at the time the partition if effected.(Paragraph 2, Article 1076, Ibid.)

As to works made on the estate for the mere pleasure of the donee, no reimbursement is due him for them; he has, however, the right to remove them, if he can do so without injuring the estate. (Paragraph 3, Article 1076, Ibid.)

5) Distribution of estate uninterrupted, subject to security

Should any question arise among the co-heirs upon the obligation to bring to collation or as to the things which are subject to collation, the distribution of the estate shall not be interrupted for this reason, provided adequate security is given. (Article 1077, Ibid.)

5. Partition and distribution of estate


Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its value. (Article 1079, Ibid.)

1) Co-ownership status prior to partition

Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (Article 1078, Ibid.)

2) Partition during lifetime (inter vivos)

Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs.(Article 1080, Ibid.)

A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash. (Paragraph 2, Article 1080, Ibid.)

3) Mandatary, with power to make partition

A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs.(Article 1081, Ibid.)

The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or a person subject to guardianship; but the mandatary, in such case, shall make an inventory of the property of the estate, after notifying the co-heirs, the creditors, and the legatees or devisees. (Paragraph 2, Article 1081, Ibid.)

NB: A mandatary is someone who has been given a mandate, including the power to represent and transact for an on behalf another.

4) When deemed a partition

a) Every act intended to put an end to indivision or co-ownership

Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, and exchange, a compromise, or any other transaction. (Article 1082, Ibid.)

b. Right to partition

1) Heirs

a) Co-heirs

Every co-heir has a right to demand the division of the estate unless the testator should have expressly forbidden its partition, in which case the period of indivision shall not exceed twenty years as provided in article 494. This power of the testator to prohibit division applies to the legitime.(Article 1083, Ibid.)

Even though forbidden by the testator, the co-ownership terminates when any of the causes for which partnership is dissolved takes place, or when the court finds for compelling reasons that division should be ordered, upon petition of one of the co-heirs. (Paragraph 2, Article 1083, Ibid.)

b) Voluntary heirs

Voluntary heirs upon whom some condition has been imposed cannot demand a partition until the condition has been fulfilled; but the other co-heirs may demand it by giving sufficient security for the rights which the former may have in case the condition should be complied with. (Article 1084, Ibid.)

(1) Provisional partition

Until it is known that the condition has not been fulfilled or can never be complied with, the partition shall be understood to be provisional.(Ibid.)

2) Equality in partition

In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind.(Article 1085, Ibid.)

3) If indivisible or be impaired if divided

a) Adjudicated to an heir – subject to compensating other heirs

 Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in cash.(Article 1086, Ibid.)

b) Option to sell at public auction, available to any heir

Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done. (Paragraph 2, Article 1086, Ibid.)

4) Reimbursement for income and fruits received

In the partition the co-heirs shall reimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect. (Article 1087, Ibid.)

5) Hereditary rights

Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one month from the time they were notified in writing of the sale by the vendor. (Article 1088, Ibid.)

6) Delivery of titles or ownership

a) To heir whom property has been adjudicated

The titles of acquisition or ownership of each property shall be delivered to the co-heir to whom said property has been adjudicated. (Article 1089, Ibid.)

b) If title covers multiple lands or one land divided by co-heirs

When the title comprises two or more pieces of land which have been assigned to two or more co-heirs, or when it covers one piece of land which has been divided between two or more co-heirs, the title shall be delivered to the one having the largest interest, and authentic copies of the title shall be furnished to the other co-heirs at the expense of the estate. If the interest of each co-heir should be the same, the oldest shall have the title. (Article 1090, Ibid.)


1) Exclusive ownership

A partition legally made confers upon each heir the exclusive ownership of the property adjudicated to him. (Article 1091, Ibid.)

2) Reciprocal obligation of warranty

After the partition has been made, the co-heirs shall be reciprocally bound to warrant the title to, and the quality of, each property adjudicated.(Article 1092, Ibid.)

The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified.(Article 1093, Ibid.)

Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve. (Paragraph 2, Article 1093, Ibid.)

3) The 10-year prescription, on action to enforce warranty

An action to enforce the warranty among heirs must be brought within ten years from the date the right of action accrues. (Article 1094, Ibid.)

4) Credit as collectible debt

If a credit should be assigned as collectible, the co-heirs shall not be liable for the subsequent insolvency of the debtor of the estate, but only for his insolvency at the time the partition is made.(Article 1095, Ibid.)

The warranty of the solvency of the debtor can only be enforced during the five years following the partition.(Paragraph 2, Article 1095, Ibid.)

Co-heirs do not warrant bad debts, if so known to, and accepted by, the distributee. But if such debts are not assigned to a co-heir, and should be collected, in whole or in part, the amount collected shall be distributed proportionately among the heirs. (Paragraph 3, Article 1095, Ibid.)

5) Termination of obligation of warranty; Grounds

The obligation of warranty among co-heirs shall cease in the following cases:

1) When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired;

2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith;

3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property. (Article 1096, Ibid.)


1) Rescission or annulment grounds

a) Same causes as contracts

A partition may be rescinded or annulled for the same causes as contracts. (Article 1097, Ibid.)

b) Lesion (1/4 less)

A partition, judicial or extra-judicial, may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less, by at least one-fourth, than the share to which he is entitled, considering the value of the things at the time they were adjudicated. (Article 1098, Ibid.)

(1) Partition by testator cannot be impugned by lesion – subject to exceptions

The partition made by the testator cannot be impugned on the ground of lesion, except when the legitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise. (Article 1099, Ibid.)

2) The 4-year prescription, action for rescission on account of lesion

The action for rescission on account of lesion shall prescribe after four years from the time the partition was made. (Article 1100, Ibid.)

3) Heir who is sued

The heir who is sued shall have the option of indemnifying the plaintiff for the loss, or consenting to a new partition.(Article 1101, Ibid.)

Indemnity may be made by payment in cash or by the delivery of a thing of the same kind and quality as that awarded to the plaintiff.(Paragraph 2, Article 1101, Ibid.)

If a new partition is made, it shall affect neither those who have not been prejudiced nor those have not received more than their just share. (Paragraph 3, Article 1101, Ibid.)

4) Heir who alienated whole/considerable part of real property adjudicated to him

An heir who has alienated the whole or a considerable part of the real property adjudicated to him cannot maintain an action for rescission on the ground of lesion, but he shall have a right to be indemnified in cash. (Article 1102, Ibid.)

5) Omission of objects or securities

The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted. (Article 1103, Ibid.)

6) Partition made with preterition of compulsory heir/s

A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him. (Article 1104, Ibid.)

A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person. (Article 1105, Ibid.

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