Short answer. Half and half. Where a widow or widower survives with illegitimate children, the surviving spouse takes one-half of the inheritance and the illegitimate children take the other half, dividing it among themselves. Only the deceased's own estate is divided; the widow's own share of the marital property is hers already.
What the law says
If a widow or widower survives with illegitimate children, such widow or widower shall be entitled to one-half of the inheritance, and the illegitimate children or their descendants, whether legitimate or illegitimate, to the other half.
Civil Code, Article 998 — Spouse With Illegitimate Children. Read the full provision →
How this article reads today
The one-half and one-half split still stands, but the article must be read against later law. It was drafted on the classification of children used when the Civil Code took effect in 1950, when illegitimate children were sorted into sub-classes with different shares. The Family Code did away with those sub-classes: there is now a single class of illegitimate child, and the legitime of each illegitimate child is fixed at one-half of the legitime of a legitimate child. Except for that modification, the Family Code left the Civil Code's provisions on successional rights in force. So where the only survivors are the spouse and illegitimate children, the halves remain — and if there is more than one such child, they share their half equally among themselves.
Divide the right pot
The commonest and costliest mistake is dividing everything the couple owned. What passes to the heirs is only the deceased's estate. If the spouses were under absolute community, the community property is liquidated first: the surviving spouse keeps her own one-half share as owner, not as heir, and only the deceased's half becomes the estate. Under a conjugal partnership the same liquidation happens over the partnership gains, with each spouse's exclusive property set aside. Debts, funeral expenses and taxes are settled before distribution. Only what is left is halved between the widow and the illegitimate children.
Filiation has to be established
None of this helps a child who cannot prove he is the deceased's child. Illegitimate filiation is proved in the ways the Family Code allows — most simply by the record of birth, an admission of filiation in a public document, or a private handwritten instrument signed by the parent, and failing those, by the other evidence the law permits. A child recognised in the birth certificate signed by the father stands on very different ground from one whose only proof is that neighbours knew of the relationship. Where filiation is contested, that issue is usually litigated before any share is computed. The Family Code also governs the use of the father's surname; it is not the same question as inheritance.
Settling the estate in practice
With no will, the estate may be settled out of court if the heirs are all of age, agree, and there are no debts — but every heir must take part, and leaving out the illegitimate child does not defeat his right. The estate tax return has its own deadline, and interest and surcharges accumulate quietly while the family argues. If the heirs cannot agree, or a minor is involved, judicial settlement is the route. Gather the death certificate, marriage certificate, the child's birth certificate, titles, bank records and the deceased's debts before anyone drafts a deed. This is general legal information, not advice on your family's estate.
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.
- Arnelito Adlawan vs. Emeterio M. Adlawan, et al, G.R. No. 161916, January 20, 2006 — read the decision on LawPhil →
- Fe D. Quita vs. Court of Appeals, et al, G.R. No. 124862, December 22, 1998 — read the decision on LawPhil →