Dear Atty. Peachy,

My father and mother had me when they were still in college. After three years of living together, they eventually went on their separate ways. My mother was left to raise me on her own. Just about 11 years ago, I had an opportunity to meet my father. Perhaps in his desire to make up for his shortcomings as a father while I was growing up, he gifted me and my husband a house and lot. My husband and I have been living there since a month after we got married until now that we already have two wonderful sons.

Just recently, my father succumbed to cancer. Apparently, his legitimate family does not know that I exist and upon learning that the house where my family and I currently lives was gifted by my father, sought to recover possession and ownership of our house and lot, claiming that it is part of my father’s estate and that they, as his legitimate heirs, are the only rightful heirs of my father. It appears that his family was left with nothing upon his death and this is perhaps the reason why they are so adamant to get possession and ownership of our house and lot.

Are they correct? Can they still question the gift that was given to me by my father several years ago and claim that it is part of his estate? If the property is part of the estate of my father, don’t I also have a right to inherit from him even if I am just an illegitimate child?

Gabriel

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Dear Gabriel,

Unfortunately, they can still question the gift that was given to you by your father even if it was given several years ago. A gift given by a person during his lifetime is a donation which may be challenged by his heirs and successors in interest for being inofficious. Inofficiousness exists when a donation exceeds the legitime or the portion of the estate that is reserved by the law to compulsory heirs (persons mandated by law to be the heirs of the decedent).

Contrary to the assertion of your father’s legitimate family, however, you, as a child of your father albeit illegitimate, also have a right to his estate. As a general rule, illegitimate children are entitled to receive one-half of what a legitimate child would be entitled to.

If the deceased leaves a will, legitimate children are entitled to one-half of the estate, to be divided equally among themselves. The other half is considered the “free portion” of the estate. The surviving spouse is entitled to one-fourth of the estate if there’s only one legitimate child. If there is more than one legitimate child, the spouse is entitled to the same portion as each legitimate child. The spouses inheritance is taken from the free portion of the estate. Each illegitimate child is entitled to the equivalent of one-half the legitime of a legitimate child, to be taken from the free portion of the estate. If the total for all illegitimate children is more than the remaining free portion of the estate, the free portion is divided equally among them. If there are no legitimate children and descendants, the deceased’s parents or ascendants are entitled to one-half of the estate. Whatever is left of the free portion of the estate after these legitimes may be disposed of according to the deceased’s will.

If the deceased does not leave a will, like in the case of your deceased father, the estate will have no free portion and will be divided equally among the surviving spouse and legitimate children. If there are illegitimate children, like in your case, they are entitled to the equivalent of half the share of the legitimate children.

While your father’s legitimate family may have a right to the house and lot given to you, it is only to the extent of the portion that they are entitled to as legitimate heirs of your father. You will be entitled to retain your own share as an illegitimate child.

Should your father’s legitimate family be successful in declaring the donation of the subject property to you as inofficious and the property is declared part of the estate of your deceased father, you have the option to buy their share to the property or agree to sell the property and just get your rightful share in the proceeds of the sale.

Atty. Peachy Selda-Gregorio