What is right of representation?
Right created by fiction of law where the representative is raised to the place and degree of the person represented, and acquires the rights which the latter would have if he were living or could have inherited.
What is the effect of representation?
Whenever there is succession by representation, the division of the estate shall be made per stirpes, in such manner that the representative or representatives shall not inherit more than what the person they represent would inherit, if he were living or could inherit. (Art. 974)
Note: Per stirpes means inheritance by group, all those within the group inheriting in equal shares. Representation is superior to accretion.
When does right of representation arise?
Representation may arise either because of:
2. incapacity, or
When is right or representation not available?
1. As to compulsory heirs: In case of repudiation, the one who repudiates his inheritance cannot be represented. Their own heirs inherit in their own right.
2. As to voluntary heirs:
Voluntary heirs, legatees and devisees who:
a. Predecease the testator; or
b. Renounce the inheritance cannot be represented by their own heirs, with respect to their supposed inheritance.
Does right of representation apply in the collateral line?
Right of representation takes place only in favor of children of brothers or sisters, whether full or half blood and only if they concur with at least one uncle or aunt.
Note: This rule applies only when the decedent does not have descendants.
Does the right of representation apply to adopted children?
No. The right of representation cannot be invoked by adopted children because they cannot represent their adopting parents to the inheritance of the latter’s parents.
Reason: The law does not create any relationship between the adopted child and the relatives of the adopting parents, not even to the biological or legitimate children of the adopting parents.
Note: Under R.A. 8552 or the Domestic Adoption Law, the adopted child and the adopting parents have reciprocal successional rights.
What is the rule on equal division of lines?
General Rule: Intestate heirs equal in degree inherit in equal shares.
1. In the ascending line, the rule of division by line is ½ to the maternal line and ½ to the paternal line, and within each line, the division is per capita.
2. In the collateral line, the full-‐blood brothers/sisters will get double that of the half-blood.
3. The division in representation, where division is per stirpes – the representative divide only the share pertaining to the person represented.
Note: The share of an illegitimate child is ½ of the share of a legitimate one. Full blood brother or sister is entitled to double the share of half brother or sister (Art. 1006). Compulsory heirs shall, in no case, inherit ab intesto less than their legitime as provided in testamentary succession.