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Upon the death of either spouse, the absolute community is terminated, in which case, the community property

may be liquidated in the same proceeding for the settlement of the estate of the deceased. If no judicial
settlement proceeding is instituted for the settlement of the estate of the deceased, the law nevertheless requires
the liquidation of the absolute community, either judicially or extra-judicially.

ALBANO
Duty of the surviving spouse.
The law mandates that the surviving spouse should liquidate the community property upon termination of the
marriage by death. This is normally done in the settlement of the estate of the deceased, whether testate or
intestate. If no judicial settlement proceeding is instituted, the surviving spouse must liquidate the community
property within one (1) year from the death of the deceased, whether judicially or extra-judicially. If he/she does
not comply with this requirement, and he/she sells properties of the community property, the same is void.
Effect of failure to comply with duty to liquidate.
Should the surviving spouse fails to comply with the liquidation requirement within one (1) year from the death
of the deceased, and he/she gets married, the subsequent marriage shall be governed by the regime of
mandatory complete separation of property. Basically, the reasons for the law are to prevent any prejudice to the
compulsory heirs of the first marriage and to prevent fraud to creditors.
It is required by Article 102, paragraph 5 of the Family Code that the presumptive legitimes of the legitimate
common children shall be delivered upon the liquidation of the community property. This is one reason for
paragraph 3 of Article 103 of the Family Code. It cannot be said that their shares may be safe in the subsequent
marriage. It is possible that they may be dissipated in the subsequent one.
The law imposes upon the subsequent marriage the regime of mandatory complete separation of property if the
spouse, whose community of property has been terminated, did not liquidate the same. This is an exception to
Article 75 of the Family Code which says that in the absence of marriage settlements, or when the regime
agreed upon is void, the system of absolute community of property shall govern.

STA. MARIA
LIQUIDATION UPON DEATH. Section 2, Rule 73 of the Rules of Court provides that:
when the marriage is dissolved by the death of the husband or wife, the community property shall be
inventoried, administered, and liquidated, and the debts thereof paid, in the estate or intestate
proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be
liquidated in the testate or intestate proceedings of either.
However, if the decedent spouse left no will and no debts, and the heirs are all of age, or the minors are
represented by their judicial or legal representatives, duly authorized for the purpose, the parties may, without
securing letters of administration from the court, divide the estate among themselves as they see t by means of
a public instrument led in the ofce of the register of deeds, and should they disagree, they may do so in an
ordinary action for partition. If there is only one heir, he may adjudicate to himself the entire estate by means of
an af davit led in the of ce of the register of deeds (Section 1, Rule 74 of the Rules of Court).
Article 103 also provides that if upon the lapse of the one-year period from the death of one of the
spouses, no liquidation is made, any disposition or encumbrance involving the community property of the
terminated marriage shall be void. It must, however, be stated that any disposition or encumbrance of any
specic property before the process of liquidation has been completed and therefore even before the lapse of the
one-year period is premature, and hence, likewise void. This is so because, upon the death of one of the spouses,
only the interest to the property and not any physical and de nite property is vested on the heirs. In fact, if there
are creditors of the decedent, the interest will only vest after payment of the debts of the decedent. It is only

after liquidation and partition when specic properties are de nitely and physically determined that a sale of
such allotted property can be made. Hence, although, after the death of the decedent, the heirs can sell, waive or
even alienate their interest to the property they inherit, they cannot sell a speci c property as the same can only
be determined after liquidation and partition.

NATURE OF INTEREST OF HEIRS PRIOR TO LIQUIDATION. Article 103 is identical to Article 130 in
connection with the rules on the conjugal partnership of gains. Hence, the explanation hereunder applies both to
Articles 103 and 130.
While the spouses have an interest in the absolute community property or the conjugal partnership
property, the spouses cannot claim any definite property at the time when the absolute community property or
conjugal partnership is still in existence. Upon the death of one of the spouses which is a cause for the
dissolution of the absolute community property or the conjugal partnership, the rights of the heirs vest.
Pertinently, it has been ruled that:
the right of succession of a person are transmitted from the moment of death, and where, as in this case,
the heir is of legal age and the estate is not burdened with any debts, said heir immediately succeeds, by
force of law, to the dominion, ownership and possession of the properties of his predecessor and
consequently stands legally in the shoes of the latter (Reganon v. Imperial, 22 SCRA 80).
Consequently, if the deceased spouse is survived by a spouse and compulsory heirs, like the legitimate
children, the absolute community property or the conjugal partnership, which has been dissolved by such death
of the spouse, evolves into a co-ownership between the surviving spouse, on the one hand, and the heirs on the
other (Marigsa v. Macabuntoc, 17 Phil. 107). Thus, in Hagosojos v. Court of Appeals, 155 SCRA 175, the
Supreme Court ruled:
x x x Considering that all the properties speci ed in the Compromise Agreement were described
conjugal partnership properties of the rst marriage, it follows that upon the death of Jacinta, the
conjugal partnership evolved into a co-ownership between the surviving spouse, Anastacio, and her
three children, the petitioner and the two other private respondents, Araceli Hagosojos-Alindogan and
Hagosojos-Nicolas. Anastacio became the owner of 5/8 of the mass of properties while each of the three
children, of 1/8.
Also, the Supreme Court has held in Maria Lopez v. Magdalena Gonzaga Vda. De Cuaycong, 74 Phil.
610, citing Manresa, Volume 3, pp. 486-487, 3rd edition, that:
each co-owner owns the whole, and over it he exercises rights of dominion, but at the same time he is
the owner of a share which is really abstract because until the division is effected, such share is not
concretely determined. The rights of the coowners are, therefore, as absolute as dominion requires
because they may enjoy and dispose of the common property without any limitation other than that they
should not, in the exercise of their right, prejudice the general interest of the community, and possess, in
addition, the full ownership of their share, which they may alienate, convey or mortgage, which share
we repeat will not be certain until the community ceases.
As a co-owner, the spouse or the heirs can undertake any act of dominion over their interest, share or
participation but not over a speci c concrete property. Thus, as provided in Article 493 of the Civil Code, each
co-owner shall have the full ownership of his part and of the fruits and benets pertaining thereto, and he may
therefore alienate, assign, or mortgage it, although the effect of the alienation or mortgage, with respect to the
co-owners, shall be limited to the portion which may be allotted to him in the division upon termination of the
co-ownership (Maria Lopez v. Magdalena Gonzaga Vda. De Cuaycong, 74 Phil. 610).
Also, prior to the liquidation and partition, the interest of an heir in the estate of the deceased person
may nevertheless be attached for purposes of execution, even if the estate is in the process of settlement before
the courts (De Borja v. De Borja, 2 SCRA 1131). This is also allowed under Section 7(e), Rule 57 of the 1997

Rules of Civil Procedure, which provides that one of the properties that can be attached for purposes of
execution is the interest of the party against whom attachment is issued in property belonging to the estate of
the decedent, whether as heir, legatee, or devisee by serving the executor or administrator or other personal
representative of the decedent with a copy of the writ and notice that said interest is attached. Thus, it has been
held:
Although the value of the participation of Rafael Vilar in the estate of Florentino Vilar was
indeterminable before the nal liquidation of the estate, nevertheless, the right of participation in the
estate and the lands thereof may be attached and sold (Gotauco & Co. v. Register of Deeds of Tayabas,
59 Phil. 756, as cited in De Borja v. De Borja, 2 SCRA 1131).
However, the attachment is subject to the administration of the estate. The administrator retains control
over the properties and will still have the power to sell them, if necessary, for the payment of the debts of the
deceased (De Borja v. De Borja, 2 SCRA 1131).
To reiterate, it is only after liquidation that de nable property can be claimed by and adjudged to them
from the remainder of their properties after satisfaction of all the obligations which the community property has
to pay. Thus, speci c and concrete properties cannot be donated by any co-heir prior to liquidation and partition
(Hagosojos v. Court of Appeals, 155 SCRA 175). Also, in Anderson vs. Perkins, 1 SCRA 387, where the special
administrator of the deceased spouse sought to sell certain properties allegedly owned by the deceased spouse,
the Supreme Court issued an order stopping such sale on the ground, among others, that the widow claims that
the properties are either conjugally owned by the deceased and the widow or separately owned by the widow.
Pertinently, the Supreme Court said:
There is, however, a serious obstacle to the proposed sale, namely, the vigorous opposition presented
thereto by the appellant, the surviving spouse of the deceased, on the ground that she is allegedly
entitled to a large portion of the personal properties in question, either because they were conjugal
property of herself and the deceased, or because they are her own, exclusive, personal property. Indeed,
the records show that up to the time the proposed sale was asked for and judicially approved, no
proceedings had as yet been taken, or even started, to segregate the alleged exclusive property of the
oppositor-appellant from the mass of the estate supposedly left by the deceased, or to liquidate the
conjugal partnership property of the oppositor-appellant and the deceased. Until, therefore, the issue of
the ownership of the properties sought to be sold is heard and decided, and the conjugal partnership
liquidated, or, at least, an agreement be reached with appellant as to which properties of the conjugal
partnership she would not mind being sold to preserve their value, the proposed sale is clearly
premature. x x x

CLAIM AGAINST THE ESTATE.


Upon the death of any of the spouses, the absolute community of property or the conjugal partnership of
gains is dissolved or terminated. No complaint for the collection of indebtedness chargeable to the community
or conjugal properties can be brought against the surviving spouse (Alipio v. Court of Appeals, 341 SCRA 441;
Ventura v. Militante, 316 SCRA 226; Calma v. Tanedo, 66 Phil. 594) unless such surviving spouse has
committed himself or herself to be solidarily liable for the claim against the absolute community or the conjugal
partnership property (Imperial Insurance v. David, 133 SCRA 317). If the claim is brought against the surviving
spouse who did not commit himself or herself to be solidarily liable, and a judgment is rendered directing the
surviving spouse to pay the obligation, such judgment is void (Ventura v. Militante, supra). All debts chargeable
against the community or conjugal partnership, which has already been dissolved, must therefore be claimed
and paid in the settlement of estate proceedings of the deceased spouse.
The reason for this is that upon the death of one spouse, the powers of administration of the surviving
spouse ceases and is passed to the administrator appointed by the court having jurisdiction over the
settlement of estate. Indeed, the surviving spouse is not even a de facto administrator such that

conveyances made by him of any property belonging to the partnership (or community property) prior to
the liquidation of the mass of conjugal partnership property (or absolute community property) is void
(Alipio v. Court of Appeals, 341 SCRA 441, additions inside, parenthesis supplied).

MANDATORY COMPLETE SEPARATION OF PROPERTY. The last paragraphs of Article 103 in relation to
the absolute community property and of Article 130 in connection with the conjugal partnership of gains are
identical. They apply when the rst marriage is terminated by death of one of the spouses, and not when the
rst marriage has been judicially annulled or declared void. They identically provide that if the surviving spouse
validly remarries without any liquidation of the properties of the previous marriage, the mandatory regime of
complete separation of property shall govern the property relations of the subsequent marriage. These identical
provisions are the only exceptions to the general rule that, in the absence of a marriage settlement providing for
any other type of regime including the separation of property regime, the absolute community of property
regime shall govern the marriage. This is intended to prevent confusion of the properties of the rst and second
marriages. If, prior to such subsequent marriage, the contracting parties execute a marriage settlement
stipulating that the conjugal partnership property regime or the absolute community of property regime shall
govern the marriage, such stipulation is not valid as it is against the law. Article 1 of the Family Code clearly
provides, among others, that marriage settlements may x the property relations during the marriage within
the limits provided by this code. The last paragraphs of Article 103 and Article 130 constitute two limitations
provided by the Family Code in relation to the execution or stipulations in a marriage settlement which must,
therefore, be strictly observed.

Article 104
Article 104. Whenever the liquidation of the community properties of two or more marriages contracted by the
same person before the effectivity of this Code is carried out simultaneously, the respective capital, fruits and
income of each community shall be determined upon such proof as may be considered according to the rules of
evidence. In case of doubt as to which community the existing properties belong, the same shall be divided
between or among the different communities in proportion to the capital and duration of each. (189a)
SIMULTANEOUS LIQUIDATION.
Article 104 refers to at least two marriages contracted prior to August 3, 1988 and involves a situation where the
community properties of each marriage are to be liquidated simultaneously. Determination of which of the
inventoried properties, including their fruits and income, belongs to which community property regime depends
upon the proofs presented by the contending claimants in accordance with the rules of evidence.
In case of doubt, the properties inventoried shall be divided between or among the different communities in
proportion to the capital and duration of each. There can be ve (5) scenarios that are foreseeable in case the
situation is doubtful. Let us deal with only two marriages by way of illustration.
The rst scenario is when the only information known are that the two marriages are equal in duration and the
fair market value of the inventoried assets at the time of the liquidation is P15,000 but the assets in each
marriage are unknown. In this case, since the duration of each marriage is equal, the P15,000 shall be divided
equally by the heirs of each of the marriages. P7,500 for the heirs of the rst marriage and the other P7,500 for
the second marriage.
The second scenario is when the inventoried assets to be divided and the duration of each marriage are known
but the actual assets in each particular marriage are unknown. Thus, if the only information are that the rst
marriage lasted for two (2) years and the second marriage lasted for three (3) years and the fair market value of

the inventoried assets is P15,000 at the time of the liquidation, the rst marriage will be prorated a share of
two- fths (2/5) of P15,000 which is equal to P6,000 and the second marriage will be prorated a share of three-
fths of P15,000 which is equivalent to P9,000. As a result, P6,000 shall go to the heirs of the rst marriage
while P9,000 will go to the heirs of the second marriage (See Dael v. IAC, 171 SCRA 524).
The third scenario is when the durations of each marriage are the same, the assets of the rst and second
marriage are both known and the assets to be inventoried are also known. In this case, since the durations are
equal, they cancel each other and the prorating will be based on the amount of the known assets in each
particular marriage. Thus, if the value of the rst marriages asset is P1,000 and that of the second marriages
asset is P2,000, the rst marriage will be prorated a share of one-third (1/3) of P15,000 which is equivalent to
P5,000 while the second marriage will be prorated a share of two-thirds (2/3) of P15,000 which is equal to
P10,000. As a result, the heirs of the rst marriage shall get P5,000 while the heirs of the second marriage shall
get P10,000.
The fourth scenario is when the durations of each marriage are known but different, the assets of each marriage
are equal and the amount of the assets to be inventoried at the time of liquidation is ascertained. Considering
that the assets of each marriage are equal, they will cancel each other. Hence, the prorating will be based on the
different durations vis--vis the inventoried assets at the time of liquidation. Hence, if each of the marriage has
an identical P5,000 worth of assets each but the duration of the rst marriage is two (2) years and the second
marriage three (3) years, the rst marriage will be prorated a share of two- fths (2/5) of P15,000 which is
equal to P6,000 and the second marriage will be prorated a share of three fths of P15,000 which is equivalent
to P9,000. As a result, P6,000 shall go to the heirs of the rst marriage while P9,000 will go to the heirs of the
second marriage (See Dael v. IAC, 171 SCRA 524). The result is exactly the same as the second scenario.
The fth scenario is when the durations of each marriage are known but different, the amounts of assets in each
marriage are known, and also the amount of the assets to be inventoried at the time of liquidation is ascertained.
Thus, if the rst marriage is for two years and the second marriage is for three years, these respective durations
will be related to the assets for each year and then prorated with the amount of the assets to be inventoried.
Thus, if the inventoried assets to be liquidated amounts to P15,000 and if the duration of the rst marriage is
two years and that of the second marriage is three years and their assets are P1,000 and P2,000 respectively, the
duration of each marriage shall be multiplied to the assets in that marriage and then prorated with the assets to
be liquidated. Hence, the rst marriage will be prorated a share of two-eights (2/8) of P15,000 which is
equivalent to P3,750 while the second marriage will be prorated a share of six-eights (6/8) of P15,000 which is
equivalent to P11,250. The heirs of the rst marriage will get P3,750 while the heirs of the second marriage
will get P11,250.
Under the present Family Code, it is expressly provided in Article 92(3) that excluded from the absolute
community of a subsequent marriage is property acquired before the marriage by either spouse who has
legitimate descendants by a former marriage, and the fruits as well as the income, if any, of such property.
Hence, the law protects the properties of the previous marriage from the possibility of mixing with the
properties of the second marriage whether or not liquidation of the properties of the previous marriage has
already been terminated by the time of the celebration of the subsequent marriage. If there are no legitimate
descendants of the previous marriage but there was likewise no liquidation of the properties of the previous
marriage, the mandatory property regime in case the termination of the rst marriage is by death will govern
the property relationship of the subsequent marriage. Mixing up is likewise prevented. If the termination is by
nullity or annulment, the property regime in the subsequent marriage is co-ownership because the subsequent
marriage is void pursuant to Articles 52 and 53 of the Family Code. Similarly in co-ownership, the property
acquired before the marriage will not be included in the co-ownership.

ALBANO
Procedure in liquidation. The law specifies the procedure in the liquidation of the community properties of
two or more marriages where it is being carried out simultaneously.

(a) Determine the respective capital of each community property, then the fruits and income as may be proven.
The law requires that evidence must be presented to prove that one property belongs or was acquired during the
existence of one or the other. (Oas vs. Javillo, 59 Phil. 733).
(b) In case of doubt as to which community the existing properties belong, they shall be divided in proportion to
the capital and duration of each.
In Vda. de Delizo vs. Delizo, 69 SCRA 216, the Supreme Court held that if one marriage lasted for 18 years and
the other for 46 years, the properties should be divided in the proportion of 18 to 46, if the capital of either
marriage or the contribution of each spouse cannot be determined with mathematical certainty.