June 22, 1994

DAR OPINION NO. 38-94

Mr. Ricarte Abejuela Sr.

PARC Member

Dear Mr. Abejuela:

This is in reply to the following queries you have raised:

1.         Whether the term "direct compulsory heirs" as used in Section 6 of RA 6657 on the exclusion of homestead from CARP coverage extends to the 3rd generation.

2.         Whether or not a female heir who is married retain the homestead.

Anent your first query, please be informed that the term "direct compulsory heirs" in Section 6 of RA 6657 is used without qualification as to degree, hence it can extend up to the generation or even beyond.

Under Article 887 of the Civil Code of the Philippines as amended by the Family Code, the following are compulsory heirs:

1.         Legitimate children and descendants with respect to their legitimate parents and ascendant;

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

3.         The widow or widower; and

4.         Acknowledged illegitimate children.

Articles 964 and 966 of the same Code provide that a direct line is that constituted by the series of degrees among ascendants and descendants. In the line, as many degrees are counted as there are generations or persons, excluding the progenitor. In the direct line, ascent is made to the common ancestor. Thus, the child is one degree removed from the parent, two from the grandfather, and three from the great grandparent.

The term "direct compulsory heir" is understood to mean surviving spouse of the original homestead grantee or his children and descendants or illegitimate children who must prove their filiation in accordance with the provisions of the Family Code. In the absence of all the foregoing, the surviving parent of said original homestead grantee shall be considered. Moreover, since the law does not distinguish, there is no limit as to degree of filiation.

Your second query is answered in the affirmative. The law imposes two conditions for the exclusion of the homestead from CARP coverage, namely: 1. the original homestead granted or direct compulsory heir was still the owner of the original homestead at the time of the approval of RA 6657; and 2. the grantee or heir continues to cultivate the homestead. So long as said conditions are satisfied, the homestead is excluded from CARP coverage. The fact that the heir is married is no material.

We hope we have clarified matters for you.

Very truly yours,

(SGD.) HECTOR D. SOLIMAN
Assistant Secretary
Legal Affairs Office