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. This, however, does not always mean the inheritor shall take every property from the estate. There are separate rules and restrictions on the distribution of the estate in South Korea.
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.
Surviving Spouse’s Inheritance Right and Share
The spouse has a unique position here. 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-inheritors.
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-inheritors with each child. The inheritance shares are 2/7 for each child and 3/7 for the spouse.
Deceased’s Will Cannot Disinherit an Heir Entirely – Elective Share under the Korean Inheritance Law
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 friend as the sole beneficiary. Even in such a situation, the children and the spouse can still claim for the elective share. The elective shares are 1/7 for each child and 3/14 for the spouse.
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.
Also you can find more articles and court cases on the Korean inheritance law and practice by clicking here.
© Wonil Chung, Korean Licensed Lawyer. All rights reserved.