Short answer. Yes. Article 173 of the Family Code provides that the action to claim legitimacy is transmitted to the heirs when the child dies during minority. As the child's heir, you have five years from the child's death within which to file or continue the action.
What the law says
The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In these cases, the heirs shall have a period of five years within which to institute the action.
Family Code, Article 173 — Action to Claim Legitimacy. Read the full provision →
The action survives and passes to you
An action to establish a child's legitimacy is ordinarily a deeply personal one — belonging to the child and exercisable by the child during their lifetime. Article 173 of the Family Code reflects this by making the action available throughout the child's life. But the article also recognises that children sometimes die before they can vindicate their status. When the child dies as a minor or while in a state of insanity, the action does not die with them: it is transmitted to the heirs. If you are the child's heir, you may now bring or continue that case.
The five-year window for heirs
The Family Code gives heirs a five-year period within which to institute the action. This period begins when the child dies — not when the estate proceedings are opened, and not when the heirs discover the situation. If your child passed away during minority and you have not yet filed the action, count five years from the date of death. Missing this window forfeits the right entirely, so it is important to act without unnecessary delay once you have confirmed your standing as the child's heir.
Why the law makes this exception
The ordinary rule is that the action for legitimacy dies with the child. The exception for minority and insanity reflects the reality that young children and those who are mentally incapacitated cannot be expected to pursue legal proceedings on their own behalf. It would be unjust to permanently bar the claim because the child had not yet been able to file — or could not file — before death. The law allows the people most affected by the child's status — the heirs — to step in and protect the legal recognition the child was owed.
What establishing legitimacy accomplishes
Successfully establishing the child's legitimacy has consequences for the estate. A legitimate child is entitled to a legitime — a mandatory share — from the parent's estate. If the child died before collecting that share, it may flow to the child's own heirs, including you. The legitimacy action may therefore be the key that unlocks succession rights for your grandchildren or for yourself as the child's surviving parent or heir. A lawyer can advise on how the legitimacy proceedings connect to the distribution of both the child's and the grandparents' estates.
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.
- Concepcion A. Vizcarra, Feliciano A. Vizcarra Married to Maria Luisa A. Vizcarra, Victor A. Vizcarra, Evarista A. Vizcarra, and Dionisio A. Vizcarra vs. Lilia Vizcarra-nocillado, Antonio A. Vizcarra, Norma Vizcarra-sanchez, Rizalina Vizcarra-hinkley, and Julieta V. Hunter-sutton, G.R. No. 205241, January 11, 2023 — read the decision on LawPhil →
- Alejandra Arado, et al. vs. Anacleto Alcoran and Elenette Sunjaco, G.R. No. 163362, July 8, 2015 — read the decision on LawPhil →
- Mario Chiong Bernardo vs. Jose C. Fernando, Lilia C. Fernando, Noemi Fernando Molina, Cynthia C. Fernando, Aida Fernando Pointdexter And Elsa Fernando, G.R. No. 211034, November 18, 2020 — read the decision on LawPhil →
- Romeo F. Ara and William A. Garcia vs. Dra. Fely S. Pizarro and Henry Rossi, G.R. No. 187273, February 15, 2017 — read the decision on LawPhil →