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Article 173. The action to claim legitimacy may be brought by the child during his or her lifetime and shall be transmitted to the heirs should the child die during minority or in a state of insanity. In this case, the heirs shall have a period of five years within which to institute the action.

The action already commenced by the child shall survive notwithstanding the death of either or both of the parties. (268a)

During his or her lifetime the law allows a child to prove his legitimate filiation. Such right is transmissible to his/her heirs if he should die during minority or in a state of insanity where the heirs shall have a period of five years within which to institute the action.

The law on succession is the obvious purpose of the law because it will benefit the legitimate children. However, if not brought within five years after the death of the father in case he died a minor or in a state of insanity the action will prescribe. In short, it is considered that they have waived there right.

Do the illegitimate children of such child have a right to file or continue such action if it is already started?

Yes, when it mentions the word “heirs” the law does not make any distinction it is regardless of whether they are legitimate or illegitimate heirs. the purpose goes into the rules on succession because if they prove that their father is a legitimate son of the grandfather, they would benefit to the result of such proceeding.

Survival of the action

The condition to claim for legitimacy is that they must have been commenced by the child prior to his death or that of his father or both.

Illustration:

               Boy is the son of Bi. Bi filed a suit to claim legitimate filiation. During the pendency of the action, Bi died. Can Boy continue the action?

               Yes, the law states that the action already started by the child shall survive without any interruption of the death of either or both parties. So, even Bi died, his children/heirs can continue the action.

               Even if Bi is dead or both Bi and Boy are dead the rule is the same.


·        Family Code of the Philippines                    Judge Albano, Ed Vincent S. (2017)

Prepared by:

Kath Lyn B. Flores

College of Law

Laguna State Polytechnic University

Santa Cruz Laguna









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