The following hierarchy shall be observed in giving preference to decide on the funeral arrangements of the deceased: the spouse, descendants in the nearest degree, ascendants in the nearest degree and brothers and sisters
It has been said that nothing is certain except death and taxes. However, even if death is certain, funeral arrangements are not. It is a commonplace scene in telenovelas that the wife and the mistress fight over the remains of the deceased. Who then has the right and duty to make funeral arrangements for the deceased?
Believe it or not, there is a section in the Philippine Civil Code that is devoted to funerals. Article 305 of the Civil Code provides:
Article 305. 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.
The order for support shall be used as the same hierarchy for funeral arrangements.
The general rule is that the funeral shall be in accordance with the expressed wishes of the deceased pursuant to Art. 307 of the Civil Code. However, in the absence of such express wishes, the law will step in to designate the person responsible for making the funeral arrangements. Art. 305 enunciates that the order established for support shall be the same hierarchy followed in determining who shall exercise such right. Under Art. 199 of the Family Code, the following order shall be followed:
2. Descendants in the nearest degree;
3. Ascendants in the nearest degree;
4. The brothers and sisters.
In this regard, only in the absence of a spouse can the children decide on funeral arrangements. Further, if the deceased has no spouse and children, the parents will decide. Finally, if all three do not exist, then the siblings shall decide. Pertinently, Art. 305 provides that if the descendants shall decide, preference is given to the oldest. In the same vein, if only the parents are present, the father shall be given preference.
The legal wife, and not the mistress, shall have the right to make funeral arrangements of her husband.
Now, what will happen if the deceased is estranged from his legal wife and is in fact living with his mistress? Who has a better right?
This issue has been settled by the Supreme Court in the case of Valino vs. Adriano (G.R. No. 182894, 22 April 2014). In such case, the spouses separated in fact and consequently, the wife migrated abroad. Thereafter, the husband fell in love with another woman and cohabited with her until his death. When he died, the legal wife argued that she should have the right to the remains of her husband and to make the necessary funeral arrangements. On the other hand, the mistress countered that the spouses had been separated for over 20 years and that she was the one who took care of the deceased when his wife left him. The mistress added that it was the express wish of the deceased that she attend to his funeral arrangements.
The Supreme Court ruled in favor of the legal wife and held that our country does not recognize common-law relationships. The law simply confines the right and duty to make funeral arrangements to the members of the family to the exclusion of one’s common law partner. Even if the spouses were separated in fact, the Supreme Court held that the right to deprive a legitimate spouse of her legal right to bury the remains of her deceased husband should not be readily presumed to have been exercised, except upon clear and satisfactory proof of conduct indicative of a free and voluntary intent of the deceased to that end. Should there be any doubt as to the true intent of the deceased, the law favors the legitimate family.
Even if the deceased gave instructions that his mistress shall decide, the legal wife shall still have the right and duty to make funeral arrangements.
Even if the deceased wished his mistress to decide on funeral details, the Supreme Court enunciated that the wishes of the decedent with respect to his funeral are not absolute such that they are limited by Article 305 of the Civil Code in relation to Article 199 of the Family Code, and subject the same to those charged with the right and duty to make the proper arrangements to bury the remains of their loved-one.
This is how the rights on funeral arrangements are dealt with under Philippine law and jurisprudence.
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