Dear PAO,

Karl and I have been married for almost five years now. However, he met someone at work. They became friends and eventually had an intimate relationship. I have found evidence that proves Karl is having an extra-marital affair with his officemate. I am currently suffering from serious illness, and I want to ensure that none of my properties will be used by Karl to support his mistress. Can I write a will disinheriting Karl?

Marta

Dear Marta,

Before we discuss the grounds for disinheriting a spouse, we should first understand the concept of disinheritance. According to Article 916 of the New Civil Code of the Philippines, disinheritance may only be effected through a valid will wherein the ground for disinheritance should be in accordance with the law and shall be specified in the last will and testament.

What could be the effect of disinheritance? Based on Article 915 of the said Code, a compulsory heir, which includes the legal spouse, who was disinherited by the testator would be deprived of his/her legitime or the part of the estate reserved by law for the compulsory heirs of the testator.

Article 921 (4) of the New Civil Code states that a spouse who has given grounds for legal separation may be disinherited by the aggrieved spouse, to wit:

“ARTICLE 921. The following shall be sufficient causes for disinheriting a spouse: x x x

“(4) When the spouse has given cause for legal separation;”

Relatedly, the Family Code of the Philippines provides the following grounds for legal separation:

“Art. 55. A petition for legal separation may be filed on any of the following grounds:

“(1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner;

“(2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation;

“(3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement;

“(4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned;

“(5) Drug addiction or habitual alcoholism of the respondent;

“(6) Lesbianism or homosexuality of the respondent;

“(7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad;

“(8) Sexual infidelity or perversion;

“(9) Attempt by the respondent against the life of the petitioner; or

“(10) Abandonment of petitioner by respondent without justifiable cause for more than one year.”

It is important to note that even if a petition for legal separation has not been filed in court, the aggrieved spouse may disinherit the offending spouse if the latter had given grounds for legal separation. One of the grounds stated in the Family Code for legal separation is sexual infidelity.

In your case, you may write a will disinheriting your spouse because he had an extramarital affair while he was legally married to you, which is a ground for disinheriting a spouse.

We hope that we were able to answer your queries. This advice was 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.

We appreciate your trust and support.

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]