Short answer. Yes. Article 943 of the Civil Code provides that if the heir, legatee, or devisee granted the right to choose cannot make that choice, the right passes to his own heirs. Once any of them makes a choice, however, it is irrevocable.
What the law says
If the heir, legatee or devisee cannot make the choice, in case it has been granted him, his right shall pass to his heirs; but a choice once made shall be irrevocable.
Civil Code, Article 943 — When the Chooser Cannot Choose. Read the full provision →
The right to choose is inherited
When a testator grants an heir the right to choose among alternative legacies or devises, that right does not simply vanish if the heir dies before choosing. Article 943 of the Civil Code provides clearly that the right passes to the heir's own successors. The estate — and the pending choice within it — continues into the next generation rather than being lost. This prevents the testator's intent from being frustrated by the mere accident of the chooser dying before exercising the option.
Who now makes the choice
The article speaks of the right passing to the heir's heirs — plural. This means that if the original chooser died leaving several of their own heirs, all of them collectively inherit the right. How they exercise it among themselves will depend on what those heirs can agree on, or on what the original will says about the procedure. If there is disagreement among the second-generation heirs about which alternative to pick, the settlement of the estate may need to address this before the distribution can proceed.
Once made, the choice cannot be reversed
Article 943 adds a firm limitation: a choice once made shall be irrevocable. This applies regardless of who makes it — whether the original heir made it, or the heir's own heirs exercised the inherited right. The moment the choice is communicated and accepted, it is final. The other alternative is no longer available, and no party can go back on the selection on grounds of second thoughts or dissatisfaction with the outcome. This finality protects the estate from being kept in a state of uncertainty indefinitely.
When this situation arises in practice
This rule most often comes up during the settlement of an estate where the original heir died while the estate was still being partitioned. If you are among the heirs of someone who was granted a right of choice but died before using it, you may now collectively hold that right. It is worth establishing early in the settlement process who must exercise the choice, what the alternatives are, and how the decision will be made and documented, since an irrevocable election has consequences for the distribution of everything else in the estate.
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.
- Amadea Angela K. Aquino vs. Rodolfo C. Aquino and Abdulah C. Aquino/Rodolfo C. Aquino, G.R. No. 208912 / G.R. No. 209018, December 7, 2021 — read the decision on LawPhil →