Short answer. Where there is a will, the surviving spouse's legitime is a portion equal to the legitime of each legitimate child, and it is taken from the free portion — the part the testator could have disposed of as he pleased. The legitimate children's own legitimes are not touched to fund it.
What the law says
such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of
Civil Code, Article 897 — Spouse With Acknowledged Natural Children. Read the full provision →
How this article reads today
Article 897 is worded around sub-classes of illegitimate children — acknowledged natural children, natural children by legal fiction — that no longer exist. The Family Code swept those categories away and now recognises a single class of illegitimate child. It also fixed the legitime of every illegitimate child at one-half of the legitime of a legitimate child, leaving the Civil Code's other provisions on successional rights in force. So read this article for what survives in it: the widow's legitime is measured by a legitimate child's, and it is charged against the free portion rather than against the children's legitimes.
Why 'taken from the free portion' is the whole point
In testate succession the estate splits into the legitime reserved for the compulsory heirs and the free portion the testator could give to anyone. Where legitimate children survive, their collective legitime is one-half of the estate. The surviving spouse's legitime is then measured by one legitimate child's share, but it is carved out of the free portion — not out of the children's half. The illegitimate child's legitime, at half a legitimate child's, is likewise satisfied without cutting into the legitimate children's reserved half. The practical consequence is that the free portion can be exhausted, and whatever the will gave to friends, charities or a favoured relative is what shrinks.
When the free portion is not enough
The Civil Code does not simply let the shortfall fall where it may. It sets an order of reduction: donations already made in the testator's lifetime are respected as long as the legitimes can be covered, and the devises and legacies in the will are reduced or annulled first, pro rata. Only after that does the law reach further. This is why a will that looks generous on its face can end up delivering very little to the named beneficiaries. Any computation should therefore be done on the net estate after liquidation of the marital property, payment of debts, funeral expenses and taxes — never on the gross value of the assets.
What still has to be established
None of this operates until the will is admitted to probate; an unprobated will transfers nothing, however clear its terms. The illegitimate child must also establish filiation in one of the ways the Family Code allows, most commonly the record of birth or a signed admission of filiation, and where that is contested it is usually resolved before shares are computed. And the marital property must be liquidated first, so that only the deceased's own property is distributed — the widow's half of the community is hers as owner, quite apart from her legitime. This page is general legal information, not a computation of 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.
- Guillerma S. Silva vs. Conchita S. Lo, G.R. No. 206667, June 23, 2021 — read the decision on LawPhil →