Estate with Children of Decedent Dying Ahead

Someone asked me, "I have a friend ...

whose father in law, a widower, died recently. Her husband predeceased the father in law by 3 months. She does not have any child but she took care of the 2 kids left by her brother in law and his wife who died almost 10 years ago in a fire. The father in law is survived by a spinster-daughter and an estranged son who is now abroad. Will the properties of the father in law go to the two surviving children or should it be divided by all 4 children dead or alive?

My answer is the estate comprised of the properties left by the father in law shall be divided by 3. A third will go to the spinster-daughter, a third will go to the estranged son, and a third to be divided equally by the two grand children from the deceased brother in law. The friend will get nothing.

Art. 887.               The following are compulsory heirs:

(1)               Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2)               In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;

(3)               The widow or widower;

(4)               xxx

(5)               Other illegitimate children

The friend is a relative only by affinity and not by blood. She is not a legal heir. Only her husband could have inherited from the father in law. But since her husband predeceased already and no longer had legal capacity, then she is no longer entitled to receive inheritance.  For her to receive inheritance, it must be provided for in a will.

The case is different for the deceased brother in law. He had two descendant and will be substituted in the inheritance by his kids thru the right of representation under Art. 970 --   Representation is a right created by fiction of law, by virtue of which the representative is raised to the place and the degree of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited

(Art. 972.               The right of representation takes place in the direct descending line, but never in the ascending.In the collateral line, it takes place only in favor of the children of brothers or sisters, whether they be of the full or half blood.)

Under Art. 981, Should children of the deceased and descendants of other children who are dead, survive, the former shall inherit in their own right, and the latter by right of representation. The grandchildren will only divide the share of their predeceased brother in law and not receive a separate share each equal to their aunt and uncle.

The estranged son is still an heir unless he has given rise to causes making him unworthy to succeed.