What are the rights of an illegitimate child when in comes to inheritance?

Death, inheritance, and taxes — that's more than enough upheaval to go through at any given time. Having the additional factor of an illegitimate child can make things well, insurmountable.

But the fact is, illegitimate children also have legal rights to an inheritance of a deceased parent, which Atty. Paolo Abarquez of VAL Law says is in the Civil Code of the Philippines. 

“Unfortunately, this is still very traditional, because 1950s ‘yung Civil Code natin and a lot of the provisions there are adopted from the old Spanish code pa,” Abarquez says.

Below is a general guide concerning illegitimate children. For specific cases and inquiries, we advise you to get in touch with a lawyer.

The General Rule of Legitimes

“The  general concept in an inheritance is, the illegitimate child will only get half of what a legitimate child gets,” he says.

“By law, if you don’t have a last will and testament, half of your estate goes to your children and the legal spouse will get the same share as the kids,” Abarquez explains.

Such allocations are called a legitime, or the portion of the estate reserved for the compulsory heirs that cannot be disposed freely.

To illustrate, if a deceased person has five legitimate children, a legal spouse, one illegitimate child, and an estate worth P10 million, five million will automatically be given to the five children to be divided among themselves. So each child will then get P1 million.

The estate now has a remaining P5 million.

With the legal spouse getting the same share as the kids — P1million — the estate will now have a remaining P4 million to be distributed.

“The legitime of the illegitimate child, is half of the legitimate child, so that's P500,000. This will be taken from the portion that has yet to be distributed,” Abarquez explains.

“May matitirang P3.5 million na free portion. The undistributed portion will now be divided among all the heirs in proportion to what they got, including the illegitimate child,” he continues.

Abarquez explains there are instances where illegitimate children will get even less, as when a man is survived by a wife, one legitimate child and two illegitimate children.

“Half of the estate will go to the legitimate child, the spouse will get a fourth of the estate. So technically, may matitira na 1/4 din. The two illegitimate children will have to divide the remaining 1/4,” he says, emphasizing that the more illegitimate children you have, the less they will get. “Hindi mababawasan ‘long sa legitimate children.”

This is because the surviving spouse also has a legitime. “The general rule for the legitime of surviving spouse is, whatever the share of a legitimate child, that’s also the share of the spouse, except when there is only one legitimate child, then the surviving spouse gets 1/4 of the estate,” Abarquez continues.

In that case, the allocation of the estate is complete: 50% goes to the legitimate child, 25% goes to the surviving spouse, and 25% goes stop the illegitimate child.

Says the lawyer, if the decedent has a will, the three can actually contest it “kasi mababawasan yung share nila that’s provided by the law."

"In the Philippines, the last will and testament only allows you to dispose of the free portion of your estate,” he clarifies. 

A Surprise Appearance

If the existence of the illegitimate child is only made known at the wake or during the death of the deceased parent, the heirs has the right to question the paternity.

Abarquez explains "it's usually a paternity issue” because “maternity is always certain. Paternity is not.”

“It is the right of the heirs to question the paternity. Puwede yun i-test at i-question, but there is a time limit from the time of discovery,” he says. 

“There is just a number of years when you can test or question the paternity. It then becomes evidentiary,” Abarquez continues, saying evidence of paternity becomes crucial.

Some pieces of evidence that can be used when making a claim include: photos with the dad, letters from the dad, text messages, even bank transfers to show the support provided to the child.

20 Years Later

If the illegitimate child comes forward 20 years after the death, his/her legitime becomes null and void, assuming the estate has already been settled. 

According to Abarquez, the law provides an opportunity for the excluded heirs to make their claims, such as the requirement of publication of the extra-judicial settlement (EJS) — if the family chooses to settle the estate that way — to a newspaper of general interest for three weeks. 

When the family submits the EJS to the Register of Deeds, they are also required to furnish a bond equivalent to the personal properties of the decedent with a two-year time frame.

“’Yung real properties na nalipat sa children and spouse, may annotation din duon ng two years,” says Abarquez.

Those are opportunities for the excluded heirs to come forward and make their claim, he says. “What the law requires is to provide excluded heirs an opportunity to contest, that's why may two year span and a  publication requirement.,” he continues.

The Fine Print

Suppose an illegitimate child receives his rightful legitime. Well and good, right? Not really, because there is a certain fine print. Says Abarquez, “there are certain laws in the Philippines that prevent the [illegitimate] child’s property to go to the other parent.

“For instance, an illegitimate child’s potential heir is the mother. In the event the child dies ahead of the mother, there are certain laws in place that prevent the inherited property to go to the mom.”

In case that happens, the inherited property will go back to the estate of the decedent. “This means that whatever happens, the mother of the illegitimate child cannot claim anything because she is not an heir.”

In such cases, Abarquez says “cash na lang yung napupunta.”  

Before we end: What is an illegitimate child? 

"By law, an illegitimate child is a child borne out of a valid marriage," Abarquez says.

A child is considered illegitimate if s/he was borne of parents who, though they can marry, are not married at the time of the child's birth.

"If your parents marry eventually, you become legitimated. So by law, you automatically become a legitimate child because your parents marry," explains the lawyer.

There are illegitimate children who cannot become legitimated, such as those borne from a relationship that cannot be legitimate. "So for instance, the mother is married to another person, and/or the father is married to another person and they have a child. That child cannot be considered legitimate."

In the Philippines, the main laws with children's rights is essentially the Civil Code of the Philippines, "an old law, passed in the 1950s so there are certain concepts there that are not very modern, still very traditional."

But the Philippines, Abarquez clarifies, is a member, a signatory to the treaty on the convention on the rights of a child. "It's a UN convention, and anduon yung principles on the rights of a child, including the right to live, the right to support, the right to education." 

Under the convention, the child has "the right to use the surname of your mother, you can even use the surname of your biological father, assuming he recognizes you," Abarquez says.

Also "Under the convention, wala na dapat distinction between legitimate and illegitimate," Abarquez continues.

Because "kawawa yung child. Hindi naman niya kasalanan ipanganak" the lawyer says, adding the trend in other countries is to remove the labels "legitimate, illegitimate" to remove the stigma as well.

"But the Philippines, we are still traditional. Our civil code still has that label." 

— LA, GMA Integrated News