Short answer. A mandatory regime of complete separation of property governs the new marriage. Article 103 imposes it on a surviving spouse who remarries without first liquidating the community property of the terminated marriage — and it applies automatically, whatever you and your new spouse would have preferred.
What the law says
Should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage.
Family Code, Article 103 — Liquidation on Death; the Six-Month Rule. Read the full provision →
The consequence is imposed, not chosen
The last sentence of Article 103 is the one that bites: should the surviving spouse contract a subsequent marriage without compliance with the foregoing requirements, a mandatory regime of complete separation of property shall govern the property relations of the subsequent marriage. Nothing has to be filed for this to happen and nobody has to raise it at the time. The regime attaches by operation of law at the moment of the second marriage, which is why couples routinely discover it long afterwards — when they try to sell something, borrow against it, or work out who owns what.
What complete separation means day to day
Under separation of property each spouse owns, uses and disposes of what is his or hers, and what either earns during the marriage stays that spouse's own. There is no common mass to divide if the second marriage ends, which cuts both ways: the spouse with income keeps it, and the spouse who left work to run the household accumulates nothing. Support of the family is still a shared duty, but ownership is not shared. For a couple who assumed they were building a community together, this is a materially different marriage from the one they thought they had.
The first marriage's property is still unsolved
Remarrying does not close the old regime; it leaves it open with a penalty attached. The community property of the terminated marriage is still unliquidated, the children of the first marriage still have their claims in it, and any disposition or encumbrance of that property made after the six-month period is void. So the surviving spouse ends up with two difficulties at once: a new marriage under a regime nobody chose, and an old estate that cannot be dealt with until it is liquidated properly. The two are connected, because it is the failure to liquidate that produced the regime.
What to check, and what can still be done
Find the date of the first spouse's death, the date of the second marriage, and any deed of extrajudicial settlement or court proceeding that liquidated the first community. If nothing was done between those two dates, assume separation of property governs the current marriage and plan around it rather than against it. Liquidating the first community now is still the right step — it settles the children's shares and makes the old property saleable again — but it does not retroactively convert the second marriage's regime, and a couple who want a different arrangement should ask what options are actually open to 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.
- Heirs of the Late Apolinario Caburnay, et al. vs. Heirs of Teodulo Sison, namely, G.R. No. 230934, December 2, 2020 — read the decision on LawPhil →
- Heirs of Protacio Go and Marta Barola, namely: Leonor Go, et al. vs. Ester L. Servacio and Rito B. Go, G.R. No. 157537, September 7, 2011 — read the decision on LawPhil →