Text of the provision
Art. 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession.
(762a)
Civil Code of the Philippines, Republic Act No. 386, approved June 18, 1949, effective August 30, 1950. Reproduced in full; verified verbatim against the LawPhil and ChanRobles official-text renderings.
What this article means
The action for a declaration of incapacity and for recovery of the inheritance must be brought within five years from the time the disqualified person took possession.
The five-year period runs from actual possession by the disqualified person, not from the decedent's death or from when the incapacity was discovered — a distinction that can matter considerably if possession begins well after the succession opens. The article also identifies who may sue: not only other heirs, but 'any one who may have an interest in the succession,' which can include creditors of the estate or other persons whose rights depend on the correct distribution of the inheritance, provided they can show a genuine stake in the outcome.
Questions about this provision
- Does an unworthy heir lose their inheritance automatically, or must we go to court to have them excluded?
- How long do we have to sue to exclude a disqualified heir and recover the property?
Related provisions
- Article 1038 — Restoring What Was Taken.
- Article 1041 — Acceptance Is Purely Voluntary.
Cases interpreting this article
- Authorities on this article will be added here as each is verified against primary sources.