Can a parent divide their property among the children before dying?

The Code expressly permits it

Article 1080 is the provision that authorises the arrangement most Filipino families reach for: Should a person make 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. A parent may therefore assign specific properties to specific children while still alive, rather than leaving them an undivided mass to quarrel over later. The law treats that assignment as binding — it does not require the children's agreement, and it is not a favour the heirs may simply set aside after the funeral.

The one limit, and it is the whole of the limit

Everything turns on the closing clause. The partition is respected only so far as it leaves each compulsory heir's legitime intact, and Article 904 confirms that the testator cannot deprive a compulsory heir of that portion nor burden it with any condition or encumbrance. So a partition that gives the eldest child the titled land and the youngest a share too small to cover his legitime is not void in its entirety — it is reduced to the extent of the shortfall. Because the legitime is computed against the estate as it stands at death, a division that looked fair when made can turn out to be short years later.

The family business exception

The second sentence of Article 1080 addresses a real problem: dividing a going concern usually destroys it. A parent who wishes to keep an agricultural, industrial or manufacturing enterprise intact may assign it whole to one heir and order that the legitime of the other children, to whom the property is not assigned, be paid in cash. This is one of the few places the Code lets a legitime be satisfied in money rather than in the thing itself, and it exists precisely so that a farm or a factory need not be broken into unusable pieces.

What to get right on the paper

Two errors do most of the damage. The first is dividing property the parent does not solely own — where the property is conjugal or part of the absolute community, only the parent's own share is his to partition, and a document that purports to assign the whole will unravel when the surviving spouse's half surfaces. The second is leaving the instrument ambiguous about what it is: a partition of the estate operates differently from an outright donation, and the deed should say which was intended. Before signing anything, list the properties, establish who owns what, and identify every compulsory heir.

Cases citing this provision

These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.

• Ricarido Golez, in his own behalf and his children Crispino Golez, et al., G.R. No. 191376, January 8, 2020 — read the decision on LawPhil →
• Araceli Mayuga vs. Antonio Atienza, G.R. No. 208197, January 10, 2018 — read the decision on LawPhil →
• Lordito Arrogante, et al. vs. Beethoven Deliarte etc, G.R. No. 152132, July 24, 2007 — read the decision on LawPhil →
• J.L.T. Agro, Inc. vs. Antonio Balansag, et al, G.R. No. 141882, March 11, 2005 — read the decision on LawPhil →

Related provisions

• Civil Code, Article 1080 — Partition by the Decedent Himself
• Civil Code, Article 1079 — Partition Defined
• Civil Code, Article 904 — The Legitime Cannot Be Taken Away