Short answer. Generally, yes. Article 1025 of the Civil Code requires an heir, devisee, or legatee to be living at the moment succession opens — the decedent's death — except in two situations: when representation applies, and when the heir was already conceived at the time of death and is later born alive under the conditions Article 41 sets out.
What the law says
In order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41.
Civil Code, Article 1025 — The Heir Must Be Living at the Opening. Read the full provision →
What the law says
For civil purposes, the foetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the foetus had an intra-uterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb.
Civil Code, Article 41 — When a Foetus Is Considered Born. Read the full provision →
The general rule: alive when succession opens
Article 1025 states that the heir, devisee or legatee must be living at the moment the succession opens in order to be capacitated to inherit. Succession opens at the moment of the decedent's death, so as a general matter, the heir needs to still be alive at that precise point in time; someone who predeceased the decedent, even by a short while, does not personally acquire the inheritance.
The representation exception
The article carves out an exception for cases of representation, when it is proper. Representation is a mechanism by which a person steps into the place, degree, and rights of an heir who did not survive the decedent, letting that heir's own descendants inherit in the predeceased heir's stead. Where representation properly applies, the fact that the original heir was not alive when succession opened does not by itself bar the inheritance from passing through them to their representatives.
The conceived-but-unborn child exception
The article also allows a child already conceived at the time of the decedent's death to succeed, provided it be born later under the conditions prescribed in Article 41. Article 41 treats a foetus as born, for civil purposes, if it is alive at the time it is completely delivered from the mother's womb — with a further condition for foetuses of less than seven months' intra-uterine life, which are not deemed born if they die within twenty-four hours of complete delivery.
Why capacity is judged at that specific moment
Fixing the test at the moment succession opens gives a single, identifiable point in time against which every claimed heir's capacity to inherit is measured, rather than leaving it open-ended. The two exceptions do not abandon that fixed point — representation and the conceived-child rule both work by defining who is treated as capacitated at that moment, rather than by moving the moment itself.
Related provisions
- Civil Code, Article 1025 — The Heir Must Be Living at the Opening
- Civil Code, Article 41 — When a Foetus Is Considered Born