A person can partition his estate before his death

Under Article 1080 of the Civil Code, "[s]hould a person make a 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."

Unlike in the old Civil Code, partition inter vivos is expressly allowed in the present Civil Code. The rationale for the change is exhaustively explained by recognized Civil Law Commentator, former CA Justice Eduardo P. Caguioa, thus:

This article [Article 1080 as above-cited] allows the deceased to make a partition of his estate before his death which partition shall be respected insofar as it does not prejudice the legitime of the co-heirs. This partition may be made either by an act inter vivos or by will.

Whether one or the other, however, is followed, the requirements of law as to form must be complied with. If the testator should make it by will, then there is no doubt that the same is valid and binding on the heirs. If the testator makes a partition inter vivos, should such partition be after the making of a will and in accordance therewith or can the testator make a partition inter vivos without any supporting will?

Under the old Civil Code the article employed the term "testator" in lieu of the term now used which is "person." Interpreting this provision of law, our Supreme Court in line with the opinion of the Spanish Supreme Court and Manresa, ruled that the word "testator" in the article can have no other meaning than that there must have been a previous will executed by the decedent wherein the property was disposed of to the heirs. Subsequently, the testator makes a partition by an act inter vivos in accordance with the disposition made in such will. Hence, our Supreme Court ruled that where the testator made a partition inter vivos but the will was declared null and void, the partition was also null and void.

The word "testator" in the Old Civil Code was changed by the New Civil Code into the term "person," precisely to do away with the interpretation given to the article by our Supreme Court, the Supreme Court of Spain and Manresa. Where the old code uses the specific term "testator," the New Civil Code uses the broader term "person."What is the effect of this change? There is no doubt that the intention behind the change is to do away with the interpretation requiring a valid will in order that there be a valid partition inter vivos. Consequently, we may say that a partition inter vivos may be valid even though there is no supporting will. However, in accordance with what disposition shall said partition be made if made inter vivos? May the deceased freely, in said partition inter vivos, designate the shares of the heirs granting that the same does not prejudice the legitime of the co-heirs? If this is so, is not this a will without the formalities of a will? Was that the intention of the legislature in amending the article from the term "testator" to "person"? If that is the intention, then property may pass through the will of the testator without the formalities of a will. Hence, this will in effect destroy the intention of the legislature in carefully providing for the formalities of the will so as to safeguard the testamentary right of a person. Any act inter vivos which will designate under this theory a partition of the property will be valid disposition even though it is not a will.<It is submitted that this is not the intention of the legislature. A distinction must be made between a disposition of property and its partition. The disposition of property must be made in the manner allowed by law, namely, by will. After the designation in the will, then comes the second part, the division in conformity with that disposition and the testator may make this division in the same will or another will or by an act inter vivos. Hence, in reality, partition is simply making concrete and particular the apportionment already previously made by the testator in his will. Since our law now does not require a valid will in order that the partition inter vivos may be valid and as we submit that the partition cannot make the designation of heirs or the designation of shares but merely makes concrete, specific a designation previously made, according to what designation will this partition inter vivos be made if there is no will of the testator?

It is submitted that this designation shall be in accordance with the laws of intestacy. Inasmuch as the deceased did not make a will, it is presumed that he wanted the disposition in accordance with law, and this apportionment by the law must be interpreted to be the presumed will of the deceased; hence, the partition inter vivos must be in accordance with the designation laid down by law in case of intestacy. Said partition shall be valid so long as it does not impair the legitime of the co-heirs. That there can be a prejudice to the legitime of the co-heirs in intestate succession has been previously explained inasmuch as whether the succession is testamentary or legal, compulsory succession must always take place. From what has been explained, it is clear that should the testator institute a stranger as heir, he cannot make a partition inter vivos without making a designation by a valid will because the stranger cannot inherit by the laws of intestacy.

Since the Civil Code allows partition inter vivos, it is incumbent upon the compulsory heir questioning its validity to show that his legitime is impaired. Unfortunately, Araceli has not shown to what extent the Confirmation Affidavit prejudiced her legitime.


[1] Eduardo P. Caguioa, COMMENTS AND CASES ON CIVIL LAW CIVIL CODE OF THE PHILIPPINES Vol. III (1970 3rd Ed.), pp. 467-469.
[2] Id. at 467, citing Fajardo v. Fajardo, 54 Phil. 842 (1930).
[3] Id., citing Art. 1056, Spanish Civil Code.
[4] Id., citing Legasto v. Verzosa, 54 Phil. 766 (1930); Maria Reyes v. Reyes, 45 O.G. No. 4, p. 1836.
[5] Id. at 468, citing 7 Manresa, 6th ed., pp. 634-636; Decision of Supreme Court of Spain of June 13 1903.
[6] Id. at 154-155, citing 6 Manresa, 6th ed., p. 340; Neri v. Akutin, 74 Phil. 185 (1943).

Popular Posts