I am a U.S. citizen. I currently have a very complicated inheritance case in South Korea. My father passed away 10 years ago in the U.S. and his two Korean half brothers in Korea are currently suing my family for my father’s portion as well as my father’s sister’s portion as she passed away many years ago. They are claiming they want 60% of my father’s portion and all of my aunt. There is no will left by my grandfather. They are claiming that they took care of the grandfather who was a Korean citizen. However, when my father was alive he also sent money regularly to his father and his half brothers but as it was more than 10 years ago I am uncertain how to proceed.
- Governing Law Issue
- Statutory Share Is Equal Among the Siblings
- What Is a Contributory Share?
- Supreme Court Says It Should Be Special
- The Burden of Proof Is Placed on the Party Asserting the Contributory Share
- How the Contributory Share Actually Works in Distributing the Estate
- Special Benefit Issue Should Not Be Neglected
Governing Law Issue
Inheritance gets more complicated when it has some sort of multinational issues. Here the Korean heirs sued the U.S. heirs at the Korean court. The deceased was a Korean national and it is probable that the majority of the estate is located in Korea. That might be one of the reasons why this case should be litigated in Korea, not the U.S.
In an international inheritance case, we first need to find out which country’s law shall apply. As this case was filed with the Korean court, the Korean court decides this issue pursuant to their own choice of law doctrines. According to the Korean choice of law, the law of the deceased’s country shall become the governing law. That means, in our case, the Korean Inheritance law shall apply. (Please refer to this article regarding the basic of Korean Inheritance law)
Statutory Share Is Equal Among the Siblings
According to the Korean inheritance law which is actually Section 5 of the Korean Civil Act, the heirs are entitled to a statutory share pursuant to the Korean Civil Code. Simply put, the siblings shall have an equal statutory share.
Then how can the Korean heirs claim that they should have more shares than the US heirs? The Korean half brothers’ argument that they should have 60% of the father’s portion and all of the aunt’s portion is based on the legal concept of a contributory share.
What Is a Contributory Share?
The Korean inheritance law recognizes a “contributory share” as follows:
Article 1008-2 (Contributory Share) (1) If there is a person among co-inheritors who has specially supported the inheritee through sharing living accommodations or providing nursing, etc. for a considerable period or has specially contributed to the maintenance or increase of the property of the inheritee, the value, calculated by deducting his contributory portion as determined by an agreement of co-inheritors from the value of property of the inheritee at the time the inheritance is commenced, shall be considered as an inherited property. The amount calculated by adding such contributory portion to the inherited portion calculated under Articles 1009 and 1010 shall be the inherited portion of that person.
(2) If co-inheritors fail to reach an agreement under paragraph (1), or if it is impossible to reach an agreement, the Family Court shall, upon the request of the contributor under paragraph (1), determine the contributory portion, taking into consideration the time, method and degree of the contribution, the value of the inherited property and other circumstances.
The contributory share is an additional share to the statutory share which is given to any heir who has provided a deceased with a special contribution in taking care of the deceased or in maintaining/increasing the value of the estate.
Many Korean heirs use this legal concept to increase their shares. It is somewhat an inevitable situation that the Korean heirs live with their Korean parents while the US and foreign heirs live far away from their parents in Korea. The Korean heirs argue that, as they have been taking care of their old parents, they should be given an extra share.
However, as the law says, a contributory share requires a ’special’ contribution. Any contribution which is normally anticipated and/or required for any family member to do for the deceased cannot be a ground for a contributory share. In this regard, the Korean law says the family members have a general obligation to take care of other family members. That said, merely providing care for the parents is not sufficient to have the contributory share granted.
Supreme Court Says It Should Be Special
The most recent ruling from the Supreme Court of South Korea confirmed this. The highest court held that just taking care of the deceased who was ill for a long time can’t constitute the legal ground for a contributory share, because that was a normally anticipated care for any family member and not a “special” or exceptional care.
The Burden of Proof Is Placed on the Party Asserting the Contributory Share
It is uncertain exactly what the two Korean half brothers had done for the grandfather in the above case. The fact that the U.S. brother had sent money regularly would be helpful in defeating the Korean heirs’ contributory share claim. The time does matter here. If everything happened 10 years ago, both sides would have a problem in getting and presenting relevant evidence. The good thing is that the burden of proof is on the party who claims the contributory share.
How the Contributory Share Actually Works in Distributing the Estate
As for the share of the deceased aunt, when she passed away, her share passed down to her heirs. That said, unless the aunt left no heirs, the Korean heir’s argument that they should have 100% of her share will be accepted by the court.
It is possible, however, that the Korean heirs’ argument regarding the aunt’s share is another application of a contributory share. However, when the Korean court grants a contributory share, the court doesn’t rule like “60% of your father’s share and 100% of your aunt’s share”. The court simply takes out a certain portion of the estate as a contributory share, i.e. for example “50% of the estate” and gives it to the heir who has a right of contributory share. Then the court divides the remainder according to the statutory share and distributes them to each and every heir.
Special Benefit Issue Should Not Be Neglected
One last thing I would like to share is the fact that, in an inheritance suit, one of the most commonly litigated issues is whether and how much the other heir received any assets/money from the deceased when the deceased was alive. It is called a “special benefit”. The most common example is when a son received a certain amount of money as a gift from his parents. The special benefit is regarded as an advance payment of the inheritance share. Therefore, the value of the special benefit is deducted when calculating the actual portion which shall be distributed to each heir.
Inheritance law is a very complicated area of law. Retaining a Korean inheritance attorney who can provide competent legal knowledge, skill, thoroughness will be highly advisable.
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