Presumptive legitimes of children

Presumptive legitimes of children "I was able to read your article entitled correct sharing of property during marriage. It was mentioned there that if the spouses decide to separate their pieces of property, the presumptive legitimes of the children should be delivered. If for instance the pieces of property of the spouses amount to P1 million, how much is the presumptive legitime of the children? Someone also advised me that presumptive legitimes are delivered only to the children if there is termination of marriage. Is this true? Please advice me on this since I want that the properties of my wife and I be settled without terminating our marriage. We have one child. Ted Dear Ted,We regret to inform you that we cannot give you the exact value of the presumptive legitimes which the children can receive in the event that their parents will decide to separate their pieces of property amounting to P1 million. This is because the legitimes will come from both spouses and the basis of computation of the legitimes will be the total amount of property to be allotted to each spouse, including his or her separate property and share in the net remainder of the community property or of the conjugal properties (Commentaries and Jurisprudence on the Civil Code of the Philippines, Volume One, Arturo M. Tolentino, Ph. B., D.C.L.).A thorough computation should be had in order to determine the value of presumptive legitimes of the children taking into consideration the procedure in order to obtain the net remainder of the community property or of the conjugal properties and the separate pieces of property of each of the spouses. For now, we think that it is important to discuss the concept of presumptive legitime. The term “presumptive legitime” is a presumption. It is not an actual legitime. Actual legitime is that which is present at the time of death.The basis of the presumption is that the pieces of property of the persons involved at the time this particular situation arises would be the same as when he dies which is not a fact.It is assumed that if the parent died at this moment, the legitime of the children which is called as presumptive legitime is excluded from the absolute community property (Persons and Family Relations Law, Fourth Edition, Melencio S. Sta. Maria, Jr, quoting the remarks of Justice Puno during the hearing on the Family Code in the Senate Committee on Women and Family Relations held on January 27, 1988).It is then worth mentioning that legitime is that of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are, therefore, called compulsory heirs (Article 886, New Civil Code). The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided (Article 888, New Civil Code).On the other hand, the legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child (Article 176, Family Code). Presumptive legitime is delivered to the children not only when there is a termination of marriage.Article 137 of the Family Code provides that once the separation of property has been decreed in the petition for voluntary dissolution of the absolute community or the conjugal partnership of gains and for the separation of their common pieces of property, the absolute community or the conjugal partnership of gains shall be liquidated in conformity with this Code.Under Article 102(5), the dissolution of the absolute community regime requires the delivery of presumptive legitimes to the common children in accordance with Article 51.In the same vein, under Article 129 (8) the dissolution of the conjugal partnership regime likewise requires delivery of presumptive legitimes to the common children in accordance with Article 51.Thus, even if there is no termination of marriage but only decree of separation of property there can be a delivery of presumptive legitime to the common children of the spouses.We hope that we were able to enlighten you on the matter. Please take note, however, that all the information contained herein are based on our appreciation of the facts you provided us with. A different legal opinion may be given if other facts not included in your query will be discussed.Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net or via text message (key in: Times dearpao and send to 2299)." - https://www.affordablecebu.com/