Dear IBP,
Please hide me under the name Ms. Curiosity. I have a situation to consult: Here is a woman friend of mine who was living with a married man for 20 years already. The man had long been separated with his wife but there was no annulment of their marriage. Now, the man died and suddenly, the estranged wife appeared. My question is: Who has the right over the corpse? My friend who lived with him for more than 20 years or is it the wife who had long been separated with his deceased husband?
Truly Yours,
Ms. CURIOSITY
Your question is quite mouthwatering for a telenovela episode. Indeed, this situation had happened, is happening, and will continue to happen if those similarly situated, just like your friend’s case, will not attend to their affairs before embarking a new chapter in their lives.
Nevertheless, and surprisingly enough though, there is a provision under the Civil Code that would answer your curiosity.
But first, I would like you to understand that a corpse is not a “property” nor does a “property right” exist in a corpse.
For the purpose of burial, however, the corpse of a human being is considered to be property or quasi property, the rights to which are held by the surviving spouse or next of kin. This right cannot be conveyed and does not exist whilst the decedent is living [https://legal-dictionary.thefreedictionary.com]
Having said that, Article 305 of the Civil Code states:
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. xxxx
The order for support under Article 199 of the Family Code shall be used as the same order for funeral arrangements. Thus, the following order shall be followed:
1. Spouse.
2. Descendants in the nearest degree.
3. Ascendants in the nearest degree.
4. The brothers and sisters.
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. But if there is no directive by the deceased, the law comes in to designate the person responsible for making the funeral arrangements.
As you can see, there is nothing in the provisions of law that gives any legal right for the common law partner to make funeral arrangements, and thus, it is also saying that she has no right over the corpse – and yes, your friend is considered a common law partner under the law since the man to whom she has fallen in love with and cohabited for more than 20 years is still married to another.
Even if we argue the fact that the man had been estranged from the legal wife and lived with another for more than two decades, the common law partner has no better right.
This argument had been settled by the Supreme Court EN BANC in the case of Fe Flora Valino vs. Rosario Adriano, et al (G.R. No. 182894 dated April 22, 2014). The lone legal issue in the said case is who between the common-law wife and the legal wife is entitled to the remains of the deceased. The Highest Court ruled in favor of the legal wife explaining that Philippine law does not recognize common law relationships, just like in your friend’s situation.
The law is confined only in granting funeral arrangements to the members of the family to the exclusion of one’s common law partner. Even if the spouses had been estranged and separated for the longest time and it was the verbal wish of the deceased to be buried in the family mausoleum of the common-law partner, the right to bury the remains/corpse belongs to the legal spouse absent any evidence showing a clear directive of the wishes from the deceased.
The wishes of the deceased must be clearly provided. In fact, the Highest Court cited the comments of an eminent authority on civil law, Dr. Arturo Tolentino, that the wishes of the deceased should be established by some form of testamentary disposition. It means there must be a last will and testament that clearly express the wishes of the testator as to how, and where will he/she will be buried upon his death.
