Succession - Common law spouse.

My professor and I always seem to have a difference in opinion. In his midterm exams, he asked whether a legacy/devise given to a common law spouse is a valid disposition. I answered in the affirmative.

When we were discussing his exam, he answered vaguely making reference to article 87 of the family code, which is a provision restricting donation as between spouses, including common law spouses.

Can I get an opinion, with legal basis if possible. I've been looking for jurisprudence to support either side, but to no avail.

I agree with you for a couple of reasons: (1) Art. 87 covers donation during the marriage (or common law marriage), but implicit in the Family Code is that marriage is terminated by death. (2) In Matabuena vs. Cervantes and other cases which extended the old Art 133 of the Civil Code (which only expressly mentioned legitimate spouses), it is stated that the policy of the article is to preserve the regime of conjugal partnership (now the absolute community of property regime), and to avoid gifts to "other women". At death, the interests of the legitimate spouse are already protected by inclusion as a compulsory heir.