was happily married to his wife for twenty years. During this time, they had two children. Recently my friend passed away. After my friend's death, it was proven by the second child thru DNA test that the first son, who is now 18 years old and whom we all presumed to be his legitimate child, was born of the wife's extramarital affair with another man. Only the second child was his biological son.
Will the firstborn still be entitled to a share in the inheritance from my friend as a legitimate child? Will your answer be different if the firstborn proved that his father knew he was not his biological child?
My answer is the firstborn will still be entitled to a share in the inheritance from your friend as a legitimate child. And NO, it would not matter if the firstborn proved that his father knew he was not his biological child.
As stated in Article 164 of the Family Code, “Children conceived or born during the marriage of the parents are legitimate.” In the case at bar the couple has been married for 20 years and the first son is 18 years of age, a difference of two years with the birth happening within the marriage; the first son is a legitimate child.
Furthermore, Article 170 provides the period in which the legitimacy of the first son may be impugned, that is, within one year from the knowledge of the birth or its recording in the civil registry, given that the husband resides in the city or municipality where the birth took place or was recorded. This period is extended to two years should he (the husband) reside anywhere else in the Philippines; and three years if he resides abroad. The period to impugn the legitimacy of the first son has clearly elapsed; he is a legitimate child and shall be entitled to a share in his father’s inheritance as a legitimate child.
If the father had knowledge of the fact that the firstborn was not his biological child yet does nothing, the father is presumed to have accepted that the child is his. The latter article states that the filiation of legitimate children is established by “…the open and continuous possession of the status of a legitimate child,” in which case the firstborn continues to be legitimate.
Hypothetically, if the husband decided to question the legitimacy of the child and within the period afforded by Article 170, and the father died in the process of impugning the legitimacy of his child, his heirs may continue the questioning. Article 171 outlines the cases in which the heirs of the husband may impugn the filiation of the child within the prescribed period in Article 170, that is:
1. If the husband should die before the expiration of the period fixed for impugning the legitimacy of a child
2. If he should die after filing the complaint without having desisted therefrom
3. If the child was born after the death of the husband
Answered by J Gonzales.
/CD
Jose Renzo G. Gonzales
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