Short answer. Not by intestacy. Article 1002 strips the spouse who gave cause for a legal separation of the intestate rights the preceding articles give a surviving spouse. The decree must actually have issued, and the disqualification attaches to the spouse the court found at fault, not to both.

What the law says

In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles.

Civil Code, Article 1002 — The Guilty Spouse in Legal Separation. Read the full provision →

What the article takes away

The wording is short and total: In case of a legal separation, if the surviving spouse gave cause for the separation, he or she shall not have any of the rights granted in the preceding articles. The rights it refers to are the intestate shares a surviving spouse would otherwise draw, whether the deceased left children, parents or only siblings. It is not a reduction. Where the article applies, the guilty spouse simply drops out of the intestate order and the estate is distributed among the others as though there were no surviving spouse.

Two conditions people miss

First, there has to be a decree. Living apart for years, however final it felt, is not legal separation, and Article 1002 has nothing to bite on where no case was ever filed and decided. Second, the disqualification follows fault as the court found it. Legal separation is granted against a respondent on a ground the petitioner proved, and the article disqualifies the spouse who gave cause, not whichever of them happens to survive. A spouse who was the innocent party in the case keeps the ordinary intestate rights.

What it does not decide

This article speaks only to intestate succession. Whether a guilty spouse can still receive something under a will, and what the Code reserves for compulsory heirs, are governed by the separate provisions on legitimes and on disinheritance rather than by Article 1002, and those have their own requirements. Reconciliation is a further variable: if the spouses reconciled and the effects of the decree were set aside, the position changes, and that is dealt with by the Family Code rules on reconciliation. It is worth checking whether anything was filed after the decree.

The documents that settle it

The whole question turns on the decision itself, not on family recollection of who was to blame. Get a certified copy of the decision granting the legal separation together with its entry of judgment, and read what ground was found and against whom. Then look for anything filed afterwards: a joint manifestation of reconciliation, a later order, or a will made after the decree. Those documents, in that order, tell a lawyer whether Article 1002 is engaged at all before anyone argues about shares.

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.

Related provisions

Note. Statute text quoted on this page is reproduced from the official enactment and is linked to the full provision. The explanation around it is general legal information from Vivas & Nobles Law Office, not legal advice. Whether it applies to your situation depends on facts only a lawyer reviewing them can assess.