[Updated on August 15th, 2020]
Under the Korean inheritance law, the inheritance comes to fruition immediately when a person is deceased. The Korean inheritance law, the part V of Civil Act, provides who shall become the inheritor and beneficiary of the property of a deceased person, i.e. estate.
The inheritor and beneficiary, however, shall not always take everything from the estate. There are separate rules and restrictions on the distribution of the estate in South Korea.
In this article, we will explain to you the basic rules and practices of inheritance in Korea.
- 1 Who Shall Become the Heirs and How to Distribute the Estate under the Korean Inheritance Law
- 2 Surviving Spouse’s Inheritance Right and Share
- 3 When a Parent or a Spouse Dies Before the Deceased
- 4 Calculation of Actual Share
- 5 Deceased Cannot Disinherit an Heir Entirely – Elective Share
- 6 How to Secure and Collect Your Inheritance Claim in Korea
- 7 Transparency and Knowledge Are Essential in Dealing with Korean Heirs
Who Shall Become the Heirs and How to Distribute the Estate under the Korean Inheritance Law
The basic rule of the Korean inheritance law is that the property of the deceased is distributed according to his or her will. So, a person who is not categorized as an inheritor by law can become a beneficiary of the estate by the decedent’s will.
What if there is no valid will? The Korean inheritance law sets forth the rule of intestate succession. This rule of intestate succession names the beneficiary and the shares of each beneficiary for a distribution purpose.
According to the intestate succession rule, persons become beneficiaries in the following order.
- Direct descendants (children or grandchildren)
- Direct ascendants (parents or grandparents)
- Relative within the 4th degree of collateral consanguinity
If there are multiple persons standing in the same rank, the closest in the degree of relationship shall have the priority. There could be multiple persons in the same rank and the same degree of relationship. In such a case, they become co-inheritors and co-beneficiaries. The shares of the co-beneficiaries are all equal.
If the child is adopted, it establishes a parental relationship and the child can inherit the adoptive parent. Can the adopted child inherit the birth parent? Please refer to our previous article on the inheritance right of the adopted child.
The spouse has a unique position. If there are no relatives in the first and second rank, the spouse shall become the sole inheritor. If there is any inheritor(s) in the first or second rank, the spouse shall become the co-inheritor with that inheritor(s).
As to the share, the Korean law provides more protection to the spouse. According to the Korean intestate succession rule, the spouse shall have 50% more share than those of other co-heirs.
For example, let’s assume a deceased left a spouse, 2 children, and the parents. The 2 children and the spouse shall become the co-heirs. The parents can’t be an heir. The inheritance shares are 2/7 for each child and 3/7 for the spouse.
When a Parent or a Spouse Dies Before the Deceased
Korean Inheritance law acknowledges the succession per stirpes and lapse. This means, for example, when a son dies before his parent, the son’s right to his parent’s estate as an intestate heir passes down to his son and wife.
What happens if the wife remarries after the death of the husband and before the death of the husband’s parent? As the remarriage disconnects the wife from the inheritance from his ex-husband, she cannot claim for a succession per stripes, either.
Although it is clear that the Korean inheritance law prescribes each heir’s statutory share, the actual calculation of how much each heir shall take eventually is not a simple process.
That is because there could be some situation like one heir had received a gift with the significant value from the deceased during his lifetime. Also one family member could had supported the deceased financilly and/or physically. In such a situation, distributing the estate only by the statutory share could be unfair. Here, the Korean inheritance law provides 2 legal mechanism to mitigate the unfairness.
If any heir had provided a deceased with a special contribution in taking care of the deceased or in maintaining/increasing the value of the estate, she can take some portion out of the estate over other heirs. We call it a special contribution share.
Basically, the Korean inheritance law leaves it to the heirs’ agreement to decide who shall have a special contributory share and how much. If such an agreement is unable to reach, the court will make a decision per the heir’s request.
Previously we wrote an article on this special contribution share. If you’re interested, please check on this article.
If an heir had received any assets/money from the deceased as a gift when the deceased was alive, we call it a “special benefit”. The Korean inheritance law treats the special benefit as a prepayment of inheritance share. Thus, the court deducts the value of the special benefit from the heir’s inheritance share when calculating how much the heir can get from the estate.
It is very common in Korea that an heir receives a wide range of supports from their old parents. Sometimes it could be cash, sometimes lands. It is the job of you and your lawyer to find out how much the Korean heir received the benefits.
As mentioned earlier, the rule of intestate succession only applies when there is no valid will. Does this mean the deceased can dispose of the estate freely by his own will? The answer is not always. The Korean inheritance law recognizes an elective share, i.e. a statutory minimum share to the estate which is obliged to go to an inheritor. This is intended to protect the inheritor from being disinherited or left only a small portion of the estate. Thanks to this rule, an inheritor may elect to receive the minimum statutory share despite what the deceased had written on the will. The decedent’s freedom to making a will is restricted by this elective share.
Currently, the elective share under Korean inheritance law is 50% of intestate succession share which an inheritor would have received under the intestacy law.
So, in the above example, let’s further assume that the deceased had left a will that named his spouse as the sole beneficiary. Even in such a situation, the 2 children can still claim for the elective share. The elective shares are 1/7 for each child.
How to Secure and Collect Your Inheritance Claim in Korea
Dividing the Estate among the Heirs
Under Korean inheritance law, the ownership of an estate is automatically transferred to the heir(s) upon the death of the deceased. When there are multiple heirs, the heirs come into a co-ownership status. This is done by the operation of law. Therefore, it does not require any further legal steps such as title registration.
Each heir can get out of a co-ownership and take particular portion of the estate by his or her own property by making an agreement with other heirs or apply for a court order.
Filing a Suit When the Inheritance Right Was Infringed
If a non-heir holds an ownership of the estate or an heir took more portion of the estate than what is granted according to this legitimate share, it constitutes an infringement of inheritance right.
Common cases of inheritance infringement are as follows:
- the deceased left a wife and child, but his brother took the ownership of the estate. (The estate should be awarded to the wife and child)
- the deceased left two children, but the elder brother took everything. (the elder brother is entitled to only 50% of the estate)
In this situation, the heir whose inheritance right is infringed can correct the infringement by filing a lawsuit. One this to note is that this kind of legal action must be filed within either (i) 3 years from the date when he found out the infringement or (ii) 10 years from the date when the infringement took place, whichever comes first.
When the claim is accepted, the court orders the infringer to return the property to the legitimate heir.
When the defendant refuses to perform his judgment liability, the general process of debt collection can be applicable.
Transparency and Knowledge Are Essential in Dealing with Korean Heirs
Most of the inheritance disputes in Korea center on contesting the will and enforcing the elective share. (There are other issues such as a contributory share and a deductible special benefit. We will explain these important issues later with other posts)
We have seen many cases where the Korean heirs urge a non-Korean heir to hand over a certain legal document. They say that they need the document urgently in order to take care of the distribution and tax report. The problem is that they often do not fully disclose the situation of the estate and the foreign heir’s rights. They even provide false information about Korean law and practice. This could harm the transparency of the whole process of distribution. This also could cause a considerable financial loss to the foreign heir who is lack of sufficient and reliable information on the Korean inheritance law.
Inheritance law is a complicated area of law in South Korea. Thus, It is a good idea to seek legal advice from a Korean inheritance lawyer before handing over a legal document.
If you have any questions about the Korean inheritance matters and want to speak directly with our Korean qualified English speaking lawyer, please click the contact button below. A real Korean lawyer, not a U.S. attorney hired by a Korean lawyer nor just an English speaking staff, will help you competently.
Also, you can find a stack of legal information and articles on Korean inheritance law, written by a Korean licensed lawyer, by clicking here.
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Because of the generality of this update, the information provided herein, which may or may not reflect the most current legal development, may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.