Short answer. Out of the free portion. Article 892 states it expressly: the surviving spouse's legitime is taken from the part the testator could freely dispose of. The children's half is untouched — what the spouse's share reduces is the testator's freedom to give property away.
What the law says
In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator.
Civil Code, Article 892 — Legitime Of Surviving Spouse. Read the full provision →
What the law says
The legitime of legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.
Civil Code, Article 888 — Legitime of Legitimate Children. Read the full provision →
The Code answers the question in one sentence
In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. The words in both cases matter: the rule holds whether there is one child, so that the spouse takes a quarter, or several, so that she takes a share equal to one child's. Whatever the fraction turns out to be, its source is the same. The children's half stands first and is not reduced to accommodate the widow or widower.
Why the difference is not academic
It determines who loses when the estate has to stretch. With one child, the child takes a half, the spouse a quarter, and only a quarter is left for anyone else the will names. With three children the free portion is down to a third. A testator planning a gift to a sibling, a church or a partner is therefore competing against the spouse's legitime for the same fund, and the spouse wins, because a legitime is a reserved share while a bequest is a voluntary one.
Where the free portion runs out
Illegitimate children's legitimes are also charged against the free portion, so several claims can converge on it. When the fund cannot satisfy them all, voluntary dispositions are the first to go: a compulsory heir left short can demand that the legitime be fully satisfied, and dispositions impairing legitimes are reduced insofar as they are inofficious. The result is that a will can be perfectly valid in form and still deliver nothing to the friend it names, because the free portion was already spoken for.
One thing that is not part of the calculation
A surviving spouse's share in the marital property is not a legitime at all, and the mistake of treating it as one distorts every figure that follows. Under absolute community or conjugal partnership the regime is liquidated on death, and the spouse's half of it is her own property. Only the deceased's remaining share forms the hereditary estate against which Article 888 and Article 892 are applied. Establish the property regime and settle the liquidation before allocating any fraction.
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.
- Elenita V. Macalinao, Kenneth V. Macalinao and Kristel V. Macalinao vs. Cerina, A.K.A. Cerena N. Macalinao and Cindy N. Ma, G.R. No. 250613, April 3, 2024 — read the decision on LawPhil →
Related provisions
- Civil Code, Article 892 — Legitime Of Surviving Spouse
- Civil Code, Article 888 — Legitime of Legitimate Children
- Civil Code, Article 907 — Reduction Of Inofficious Dispositions