The Short Answer
The surviving spouse first takes their own half of what the couple owned together. That half is not inheritance; it was already theirs. The other half, plus anything the parent owned alone, is the estate. If there are children, the estate is divided equally among the spouse and the children, each getting the same share. The eldest does not get more, and sons and daughters get the same.
Example: The Dela Cruz Family of Malolos
Names and details in this example are made up.
Juan dela Cruz, a jeepney operator in Malolos, Bulacan, died in March 2026 without a will. He married Maria in 1995. They have three children: Ana, a nurse in Dubai; Ben, who lives with Maria; and Carlo, who is married and lives in Quezon City. Juan and Maria bought their house and lot in Malolos in 2003. Say it is worth ₱3,000,000. The title is in the name of "Juan dela Cruz, married to Maria dela Cruz". Juan had no debts.
Step 1: take out Maria's half. The house and lot was bought during the marriage, so it belongs to both spouses. Maria keeps her half, worth ₱1,500,000, as her share of their property. It does not matter that the title names Juan first.
Step 2: divide Juan's half. Juan's half, worth ₱1,500,000, is his estate. His heirs are Maria and the three children. Maria gets the same share as each child, so it is divided into four:
| Heir | Inherits From Juan | Total Share of the House and Lot |
|---|---|---|
| Maria (spouse) | ₱375,000 | ₱1,875,000 (her half plus her share) |
| Ana | ₱375,000 | ₱375,000 |
| Ben | ₱375,000 | ₱375,000 |
| Carlo | ₱375,000 | ₱375,000 |
Step 3: they now own the house together. Until they divide it, nobody owns a particular room or corner of the lot. Each owns a fraction of the whole: Maria five-eighths, each child one-eighth. Ben living in the house does not make his share bigger, and Ana being abroad does not make hers smaller.
What if Juan had a child outside the marriage? Say Juan also had a son, Dodong, whom he acknowledged. Dodong is also an heir. A child born outside marriage gets half the share of a child born within it. Juan's ₱1,500,000 is then split in the ratio 2 : 2 : 2 : 2 : 1, so Maria, Ana, Ben and Carlo get about ₱333,333 each and Dodong about ₱166,667.
Estate tax. Juan's estate is below the ₱5,000,000 standard deduction, so no estate tax is due. The family still has to file an Estate Tax Return with the BIR, because the title can only be transferred with the BIR's eCAR (its certificate that allows the transfer). They also need a Tax Clearance showing the amilyar (real property tax) on the house is paid.
First, Separate What Was the Couple's
When a married person dies, the couple's property is settled first. Only the deceased's part is inherited.
- Couples married on or after 3 August 1988 with no Prenuptial Agreement (a contract on property signed before the wedding) are under absolute community of property (Family Code, Art. 75). Almost everything either spouse owned at the time of the marriage or acquired after it belongs to both.
- Couples married before that date are generally under conjugal partnership of gains (the couple shares what they earn during the marriage). What each owned before the marriage stays theirs; what was earned or bought during the marriage belongs to both.
Either way, property acquired during the marriage is presumed to belong to both spouses, even if the title or Tax Declaration names only one. The surviving spouse takes half of the couple's net property. The other half, plus what was the deceased's alone, is the estate.
Some property is the deceased's alone under either regime (property system), such as land they inherited from their own parents. That goes entirely to the estate.
Who the Heirs Are
When there is no will, the Civil Code lists who inherits and in what order. The common cases:
| Who Survives | How the Estate Is Divided |
|---|---|
| Spouse and legitimate children | Equal shares: the spouse gets the same as each child (Civil Code, Art. 996) |
| Spouse and one legitimate child | Half each |
| Children only, no spouse | Equal shares among the children (Art. 979) |
| Legitimate and illegitimate children | Each illegitimate child gets half the share of a legitimate child |
| Spouse and parents, no children | Half to the spouse, half to the parents (Art. 997) |
| Spouse and brothers or sisters, no children or parents | Half to the spouse, half to the brothers and sisters (Art. 1001) |
| Spouse only | Everything to the spouse (Art. 995) |
A few points that often cause fights in the family:
- No favourites by age or sex. Children inherit in equal shares whatever their age or sex (Art. 979). The panganay does not get more for being the eldest.
- A married daughter is still an heir. Marriage does not take away a child's share.
- Grandchildren step in. If a child died before the parent, that child's own children take their parent's share between them.
- Adopted children legally adopted inherit like legitimate children.
- A child outside marriage must be shown to be the parent's child, for example by the father's signature on the Birth Certificate or a written admission. See using the father's surname.
- A live-in partner who was not married to the deceased is not an heir when there is no will, though they may own part of what the two of them bought together.
Until the Estate Is Divided
From the moment of death, the heirs own the estate together, in shares. This is called co-ownership. While it lasts:
- Each heir can sell or give away their own share, but not the whole property or a specific part of it without the others (Civil Code, Art. 493). A buyer from one heir only steps into that heir's share.
- Any heir can ask for the property to be divided at any time. The heirs can agree to keep it undivided for up to ten years (Art. 494).
- The title stays in the deceased's name until the estate is settled and the transfer is registered. Banks and buyers will want the settlement papers.
How the Family Settles It
If there is no will and no unpaid debts, and all the heirs agree, they can divide the estate without going to court. They sign a Deed of Extrajudicial Settlement before a notary, publish it in a newspaper once a week for three weeks, pay the estate tax and transfer the titles. A sole heir signs an Affidavit of Self-Adjudication (a sworn statement that they are the only heir) instead. See the Extrajudicial Settlement template.
Heirs do not have to take their share. An heir who wants to give it to the others can sign a waiver; the tax treatment depends on how it is worded, so read the Waiver of Rights notes first.
An heir who works abroad, like Ana in the example, does not need to fly home. They can sign a Special Power of Attorney for someone in the Philippines, before a Philippine consulate or before a local notary followed by an apostille.
If the family cannot agree, the way forward is a court case for partition (dividing the property). Relatives who live in the same city or municipality usually have to try barangay conciliation first.
For the steps and papers, see dividing the property of someone who died, without going to court.
Estate Tax and Amilyar
- The estate tax is 6% of the net estate, after a ₱5,000,000 standard deduction and other deductions, including the surviving spouse's half. Estimate it with the estate tax calculator.
- The return is due within one year from death. Even when no tax is due, the return is filed when there is land, a car or other registered property to transfer, because the BIR's eCAR is needed for the transfer.
- Unpaid amilyar must be settled first. See the guide on real property tax.
Government fees can change. Always check the current amount with the office before you pay. Last checked October 8, 2026.
Common Questions
Can My Brother Sell Tatay's Land Without Our Signatures?
He can sell only his own share. He cannot sell the whole land, or a specific part of it, without the other heirs (Civil Code, Art. 493). In practice the Registry of Deeds will not transfer the title without the settlement papers signed by all the heirs.
Does the Eldest Child Get a Bigger Share?
No. Children inherit in equal shares whatever their age or sex (Civil Code, Art. 979). The family may agree on a different split, for example by some heirs waiving their shares, but the law itself gives no extra to the eldest.
Does Nanay Inherit If the Title Is Only in Tatay's Name?
Yes. If the property was acquired during the marriage, it is presumed to belong to both spouses, whatever name is on the title. Nanay takes her half first, then inherits a share of Tatay's half along with the children.
Is There a Deadline to Settle the Estate?
The Estate Tax Return is due within one year from death; after that, penalties and interest run on any tax due. There is no deadline for the heirs to divide the property among themselves, but the longer it waits, the harder it gets: heirs die, their own heirs multiply, and documents get lost.
Can a Child Who Did Not Take Care of the Parent Be Left Out?
Not without a will. With no will, every heir the law names inherits. Even a will can disinherit a child only for causes the Civil Code lists, and the will must state the cause.
Not legal advice. This is general information. For advice on your own situation, consult a lawyer. If you cannot afford one, the Public Attorney's Office (PAO) or an IBP legal aid office may help for free.
Government fees, rules and requirements change, so always check with the office concerned before you go. This page explains the general rules; it cannot tell you how they apply to your own family or case. Last reviewed October 8, 2026.