An heir was accidentally left out of the estate partition — must the whole partition be redone?

The default rule: no rescission, but payment required

Article 1104 of the Civil Code provides: A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him. The law's default position is to preserve the partition rather than unravel it. The other heirs who participated in and benefited from the partition must pay the omitted heir their proper share — but the partition itself stands. This avoids the disruption of undoing a completed division of the estate.

When rescission is available

Article 1104 recognizes one exception to the no-rescission rule: if the omission was the result of bad faith or fraud on the part of the other heirs. Where the omission was deliberate — where the other heirs intentionally concealed the existence of the left-out heir or deliberately excluded that person from the process — the omitted heir has the right to seek rescission of the partition. An innocent or accidental omission, by contrast, gives rise to the right to be paid proportionately but not to unravel the partition. The distinction between honest error and deliberate exclusion determines which remedy is available.

Who must pay and in what proportion

The obligation to pay falls on the other persons interested — meaning the heirs who participated in the partition and received shares from it. Their obligation is proportionate, meaning each paying heir contributes in proportion to the share they received. If one heir received twice the share of another, that heir pays twice as much toward the omitted heir's portion. The omitted heir's share — what they would have been entitled to had they been included — is the measure of what must be paid. The partition itself is not reopened; it is the value of the omitted heir's portion that must be made good.

Practical implications

If you are the heir who was left out of a partition, Article 1104 gives you a claim against the other heirs for your proportionate share, even though the partition remains valid. You would need to establish that you are a compulsory heir entitled to participate in the partition and that you were omitted from it. If you believe the omission was deliberate, you would need to build a case for bad faith or fraud to seek rescission instead of mere payment. For the heirs who participated, the article imposes an obligation to pay — even if the omission was entirely accidental — because the omitted heir's rights to their share do not disappear merely because the partition was completed without them.

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.

• Aznar Brothers Realty Company vs. Laurencio Aying, et al, G.R. No. 144773, May 16, 2005 — read the decision on LawPhil →
• Hiers of Policronio M. Ureta, Sr., namely: Conrado B. Ureta, et al. vs. Heirs of Liberato M. Ureta, namely: Teresa F. Ureta, et al./Heirs of Liberato M. Ureta, namely: Teresa F. Ureta, et al. vs. Heirs of Policronio M. Ureta, Sr., namely: Conrado B. Ureta, et al, G.R. No. 165748 / G.R. No. 165930, September 14, 2011 — read the decision on LawPhil →
• Dionosia Monis Lagunilla, et al., vs. Andrea Monis Velasco, et al, G.R. No. 169276, June 16, 2009 — read the decision on LawPhil →
• Rebecca Viado Non, et al. vs. Court of Appeals, et al, G.R. No. 137287, February 15, 2000 — read the decision on LawPhil →

Related provisions

• Civil Code, Article 1104 — Preterition in the Partition Itself