If you are a Filipino married to a foreign national, or a foreigner married to a Filipina, and the two of you own property here, the will you are picturing in your head is probably not the will Philippine law will let you sign.
That is not a criticism of your planning. It is a feature of how our succession law works, and it catches out intelligent, well-advised couples every month. Most of them only discover the problem after a death, when the person who could have fixed it is gone.
Here are the six issues that come up most often in my practice. None of them is obscure. All of them are solvable while both spouses are alive, and almost none of them is solvable afterwards.
1. You cannot sign one will together
Many foreign spouses come from jurisdictions where “mirror wills” or “mutual wills” are standard: one document, two signatures, reciprocal provisions. England, Scotland, Australia and much of the common law world allow it.
Article 818 of the Civil Code prohibits it outright. Two or more persons may not make a will jointly in the same instrument, and Article 819 voids a joint will even where a Filipino executed it abroad.
The fix is simple once you know: two separate instruments, each signed by one testator, reciprocal in substance but never joint in form. The trap is signing the foreign-style document first and assuming it travels.
2. You are not free to leave everything to each other
This is the single biggest departure from what most foreign spouses expect.
Common law systems start from testamentary freedom. You may cut out a child, leave the lot to a charity, and the law generally lets you.
Philippine law starts from the opposite premise. A fixed share of your estate, called the legitime, is reserved by law for your compulsory heirs: your children and their descendants, your parents in default of children, and your surviving spouse. You cannot give it away, condition it, or encumber it.
With two legitimate children and a surviving spouse, the arithmetic is unforgiving. Half the estate belongs to the children. A quarter goes to the spouse as legitime. Only the remaining quarter is freely disposable. Leave that quarter to your spouse as well, and the most your husband or wife can receive is half.
So a will that says “everything to my spouse” is not a plan. It is an instruction the court will have to cut down.
3. A Filipino cannot leave Philippine land to a foreign spouse by will
Section 7, Article XII of the 1987 Constitution reserves private land to Filipino citizens, with one narrow exception written into the text: a foreigner may acquire land by hereditary succession.
The Supreme Court has construed that phrase to mean intestate succession only. A testamentary devise of Philippine land to a foreign national is void.
Sit with the strangeness of that for a moment. If a Filipina dies without a will, her foreign husband can inherit her land as an intestate heir. If she dies with a will leaving him that same land, he gets nothing. The document meant to protect him is the thing that defeats him.
This does not mean you should die intestate. Intestacy surrenders control over everything else: the executor, the specific gifts, the provision for a stepchild or a sibling. The better route is a will drafted around the restriction rather than crashing into it.
What usually works:
- Condominium units. A foreign national may hold a unit, provided foreign interest in that condominium corporation stays within the statutory limit. For couples whose Philippine holdings are units rather than land, most of this problem simply does not arise. Check the project’s current foreign equity before you rely on it, and check each project separately.
- Naked ownership plus usufruct. Leave the land itself to Filipino heirs, typically the children, and give the surviving foreign spouse a usufruct for life. He may occupy it, use it, lease it out and keep every peso of the income for as long as he lives. He simply never owns it. The Supreme Court has upheld exactly this arrangement.
- Rebalancing. Route the land to Filipino heirs and give the foreign spouse cash, deposits, vehicles, insurance and unit interests of equivalent value.
What does not work, and what you should refuse if it is offered to you: titling land in a Filipino nominee’s name for a foreigner’s benefit. That is a simulated sale, void, and criminally exposed under the Anti-Dummy Law. The same goes for a corporation with paper Filipino shareholders who never paid for their shares.
4. The legitime cannot be burdened, which limits the usufruct trick
Here is the refinement that catches out even well-drafted wills.
Article 904 provides that the testator may not impose upon the legitime any burden, encumbrance, condition or substitution of any kind. A lifetime usufruct is an encumbrance.
So if the land you are leaving to your children represents their legitime, and you also charge it with a lifetime usufruct in favour of your spouse, either child can have the usufruct struck out after your death. The usufruct must sit on the free portion, not the reserved half.
That has a consequence most couples do not anticipate: the surviving spouse cannot have both the entire free portion in ownership and a lifetime usufruct over the children’s land. There is nothing left for the usufruct to attach to. It is one or the other, and the value of a usufruct is calculated by a mortality table under Section 88(A) of the Tax Code, not by anyone’s opinion.
Deciding which of those two you prefer is a real planning choice. It is better made deliberately, with numbers, than discovered by accident.
5. The foreign spouse’s estate may not be governed by Philippine law at all
Article 16 of the Civil Code refers the order of succession, the amount of successional rights and the intrinsic validity of testamentary provisions to the national law of the deceased, whatever the nature of the property and wherever it sits.
So a foreign spouse’s Philippine estate is governed, on the face of the Code, by his own country’s law. The Supreme Court has applied this squarely: where a foreign testator’s national law recognised no system of compulsory heirship, Philippine legitime simply did not apply to his estate.
Then comes the complication. Philippine law refers to the whole of the foreign national law, including that country’s own conflict-of-laws rules. Many common law jurisdictions apply a split system: movable property governed by the law of the domicile, immovable property governed by the law of the place where it sits. Under that split, the foreign spouse’s Philippine real property is referred straight back to Philippine law, legitime and all. Lawyers call this renvoi, and our Supreme Court has accepted it.
The practical upshot for a mixed couple is that the two wills are not mirror images. The Filipino spouse is bound by legitime. The foreign spouse may be bound as to Philippine real property but free as to movables. Drafting both documents identically is almost always wrong for at least one of you.
One more point, and it is the one that quietly defeats plans: Philippine courts do not take judicial notice of foreign law. It is a question of fact and must be pleaded and proved. If nobody proves it, the court presumes foreign law is identical to ours and applies legitime anyway. If your plan depends on your national law, your executor must be instructed and funded to prove it. Say so in the will.
6. Signing the will does not avoid court, and the formalities are unforgiving
Under Article 838, no will passes property until it is allowed in probate. Executing a will does not avoid a court proceeding. It changes what the judge does: distributing according to your document rather than the statutory default.
And the formalities are strictly construed. The testator signs at the end and on the left margin of every page. Pages are numbered correlatively in letters. The attestation clause states the number of pages. Both the testator and all three witnesses acknowledge before a notary.
The witnesses are where foreign couples most often come unstuck. Each must be at least eighteen, of sound mind, literate, not blind, and domiciled in the Philippines. Friends flown in for the occasion do not qualify. And a witness who is also a beneficiary, or the spouse, parent or child of a beneficiary, voids the gift to that person. The will survives. Their inheritance does not.
What to do this week
You do not need a lawyer for the first step. Sit down together and write, in ordinary language with no legal terms, three things: everything you own and where it is, everyone you feel responsible for, and what you want each of them to have.
That document has no legal effect. But it is what your lawyer needs to give you a real answer, and it is the step almost nobody takes. Most estate disasters are not failures of drafting. They are failures to ever start the conversation.
Two other things worth doing now, independently of any will. Review your insurance and retirement beneficiary designations, because those pass by contract and a will cannot touch them. And keep an account in the Filipino spouse’s sole name with enough to run the household for six months, because joint funds are not freely accessible after a death and probate is measured in years, not months.
This article is general information on Philippine law. It is not legal advice, and reading it creates no lawyer-client relationship. Every estate is different. If you are in a Filipino-foreign marriage with property in the Philippines, consult a Philippine lawyer about your own situation, and a lawyer in the foreign spouse’s home country as well.