Dear PAO,

My father was a widower when he found solace with Julia, with whom he lived together until his demise. In my visit to the hospital where he was bedridden for several days prior to his demise, he reiterated his desire to be buried in his birthplace or near his parents. I mentioned this to Julia and this became the reason for our disagreement. She got furious and claimed that she will decide what to do with the remains of my father since she was the one paying all the hospital bills and the expenses for the burial. I must admit that I do not have the financial capacity to transport the remains of my father to the province, but I want to know who, between Julia and I, has the right to decide on the funeral arrangements.

Tessa

Dear Tessa,

In general, the funeral of the deceased shall be in accordance with his/her wish. This is in consonance with Article 307 of the New Civil Code of the Philippines, which provides that:

“The funeral shall be in accordance with the expressed wishes of the deceased. In the absence of such expression, his religious beliefs or affiliation shall determine the funeral rites. In case of doubt, the form of the funeral shall be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family.”

In the absence of such wish, Article 305 of the same law shall be followed, viz:

“The duty and the right to make arrangements for the funeral of a relative shall be in accordance with the order established for support, under article 294. In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred. In case of ascendants, the paternal shall have a better right.”

Correlative thereto, the prevailing law on the order established for support is now Article 199 of the Family Code of the Philippines, which provides that:

“Whenever two or more persons are obliged to give support, the liability shall devolve upon the following persons in the order herein provided:

“(1) The spouse;

“(2) The descendants in the nearest degree;

“(3) The ascendants in the nearest degree; and

“(4) The brothers and sisters.”

It appears that your father and Julia never married. If this is so, Julia cannot make a decision as to the remains of your father. Based on the order established for support, you are the nearest descendant. As such, you have the right to decide on matters relating to your father’s funeral or burial.

The wishes of your father regarding his funeral may also be followed. However, this should be established in some form. This finds support in the pronouncement in Valino vs. Adriano, et al., GR 182894, April 22, 2014, where the Supreme Court, through Associate Justice Jose Mendoza, stated that:

“From its terms, it is apparent that Article 307 simply seeks to prescribe the “form of the funeral rites” that should govern in the burial of the deceased. As thoroughly explained earlier, the right and duty to make funeral arrangements reside in the persons specified in Article 305 in relation to Article 199 of the Family Code. Even if Article 307 were to be interpreted to include the place of burial among those on which the wishes of the deceased shall be followed, Dr. Arturo M. Tolentino (Dr. Tolentino), an eminent authority on civil law, commented that it is generally recognized that any inferences as to the wishes of the deceased should be established by some form of testamentary disposition. As Article 307 itself provides, the wishes of the deceased must be expressly provided. It cannot be inferred lightly, such as from the circumstance that Atty. Adriano spent his last remaining days with Valino. It bears stressing once more that other than Valino’s claim that Atty. Adriano wished to be buried at the Valino family plot, no other evidence was presented to corroborate it.

“At any rate, it should be remembered that the wishes of the decedent with respect to his funeral are not absolute. As Dr. Tolentino further wrote:

“The dispositions or wishes of the deceased in relation to his funeral, must not be contrary to law. They must not violate the legal and reglementary provisions concerning funerals and the disposition of the remains, whether as regards the time and manner of disposition, or the place of burial, or the ceremony to be observed.”

Applying the afore-cited laws and jurisprudence in your situation, Julia’s statement that her decision as to the funeral of your father will be followed has no legal basis. Instead, your decision, as the descendant in the nearest degree, must be followed. Finally, the desire of your father may be followed but the same must be expressly provided or established in some form, such as in the form of a testamentary disposition.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]