“I am an adoptee from South Korea to the U.S. Currently I live in the U.S. Recently I found my biological parents died in South Korea. He is survived by his wife and 2 sons. He had businesses in Korea. Can an adopted child inherit from biological parents in Korea? I have never met or spoken to his wife and sons and so I don’t know if he had a will written. What are my inheritance rights under Korean law?”
- Everything Boils Down to Whether it is Full Adoption or Simple Adoption
- Each Jurisdiction's Choice of Law Shall Determine Whether an International Adoption is Full Adoption or Simple Adoption
- Korean Choice of Law Regarding the Inheritance Right of Adopted Child
- Korean Inheritance Law Shall Apply As Well
Everything Boils Down to Whether it is Full Adoption or Simple Adoption
A legal child is entitled to inheritance from his/her deceased parent. When the child is adopted, some jurisdictions treat the adoption as disconnecting the legal relationship with the biological parent, and some jurisdictions don’t. We call the former as a full adoption and the latter as a simple adoption.
As you can understand from the general idea of inheritance, an adopted child can inherit from biological parents in Korea only when the adoption is regarded as a simple adoption.
For your information, Korean adoption law recognizes both a full adoption and a simple adoption under different requirements.
Each Jurisdiction’s Choice of Law Shall Determine Whether an International Adoption is Full Adoption or Simple Adoption
When the adoption and inheritance took place within the same country, everything would be settled in a very simple way. The local law will determine whether the adoption is simple adoption and who inherits from the deceased.
Things, however, get complicated when adoption and inheritance took place over different countries. For example, like the above example, the adoption took place between U.S. adoptive parents and Korean birth parents. And inheritance issue arises between the U.S. adopted child and Korean birth parent.
When a case involves an international element like this, a choice of law rule comes into play. The choice of law rule is a rule established by the local court to decide which jurisdiction’s law shall govern a certain legal matter.
For example, when an inheritance claim was brought up by the U.S. adopted child at the Korean court, the Korean court will apply the Korean choice of law rules in determining the nature of the adoption and the entitlement of inheritance. Likely, if the suit is filed with the U.S. court, the U.S. choice of law rules shall be applied.
Korean Choice of Law Regarding the Inheritance Right of Adopted Child
The Korean choice of law rule provides that the law of the adoptive parent’s nation shall determine whether adoption is full adoption. Therefore, in the above case, the Korean court will basically apply the U.S. law and determine whether the adopted child can inherit from biological parents in Korea.
Case #1: Child Adopted to the U.S.
Some States Say Adopted Child Can Inherit from Biological Parents
According to the explanation of the U.S. government agency, state laws differ in treating the nature of the adoption and the right of the adopted child. It explains that while in most states the court decree that finalizes the adoption ends the legal relationship between the birth parent and the adopted child, there are some exceptions to this as follows:
- Alaska, Idaho, Illinois, and Maine provide for a continuation of inheritance rights if so stated in the adoption decree.
- In Kansas, Louisiana, Rhode Island, and Texas, an adoption decree does not terminate the right of the adopted child to inherit from the birth parent.
That said, for example, if a person who is a resident of Texas adopts a child from South Korea, the Korean court will find the adoption as a simple adoption. After all, the child can inherit from the Korean biological parent.
Adopted Child’s Inheritance Right Can Be Granted by Renvoi
Also even if the adoptive parent resides in the state where the adoption terminates the inheritance right from the birth parent, there is still possibility that the Korean court grants an inheritance right of the adopted person based on some legal theory. This relates to how the U.S. choice of law provides with regard to adoption.
nThe U.S. choice of law rule provides that the substantive law applied in adoption cases is the law of the forum, i.e. the court’s own local law. This means although the Korean choice of law points out the U.S. law as the applicable law, the U.S. law kicks it back to the Korean law by the application of the U.S Choice of law. This is called renvoi.
Actually we had successfully represented a client whose adoptive parent’s state law doesn’t recognize the inheritance right of an adopted person. The client was adopted to an American family from Korea. The client had asked our office to claim an inheritance right to the deceased Korean biological father. The Seoul Family Court applied the Korean adoption law, not the U.S. law, and granted the inheritance right for our client’s favor.
It would be noteworthy that every adoption done before the year of 2008 is regarded as a simple adoption in Korea, which was the case with our client.
Case #2: Child Adopted to the Netherlands
According to Act Conflict of Law Rules for Adoption of the Netherlands, the Netherlands simply follows the law of the country where the adoption took place. If the country where the adoption took place cuts the legal familial relationship with the birth parent, so it does in the Netherlands. One exception to this is that the adoption can be converted to a full adoption under some requirements of Dutch law.
Article 8 Additional legal effects of a recognition of a foreign adoption
– 2. If a foreign adoption does not have the effect, in the State in which it took place, of terminating the pre-existing legal familial (parent-child) relationships, it shall not have this effect in the Netherlands either.
Article 9 Conversion of a foreign adoption into an adoption under Dutch law
In the case referred to in Article 8 paragraph 2, an application may be submitted to convert the foreign adoption into an adoption under Dutch law if the child is habitually resident in the Netherlands and has been admitted to the Netherlands to reside permanently with its adoptive parents. Article 11 paragraph 2 of the Act for the Implementation of the Hague Convention on Protection of Children and Cooperation in respect of Intercountry Adoption established in The Hague on 29 May 1993 shall apply accordingly. Article 3 paragraph 2 of the present Act shall apply accordingly to the consent of the parents whose consent for the adoption was required.
That said, so long as the adoption hasn’t been transformed into a full adoption in the Netherlands, the Korean court will recognize it as a simple adoption. As a result, a person adopted to the Netherlands can inherit from the biological parents in Korea.
Korean Inheritance Law Shall Apply As Well
When the biological father is a Korean, the Korean court shall apply the Korean inheritance law to decide who inherits and how.
Under Korean law, siblings have an equal share. If the deceased has a surviving spouse, she will have 50% more share than the children. If there is a will, the inheritance share of each heir shall be determined by what is written on the will. However, the deceased’s will cannot deprive an heir of the minimum statutory share which is called an elective share.
The heirs can distribute the estate by the mutual agreement. If it is hard to reach an agreement, any heir can file a suit so that the judge distributes the estate in a legitimate and reasonable manner.
This area of law is a very complicated one. Discussing with highly experienced Korean qualified lawyers in the field of international adoption and inheritance is highly recommended.
If you have any question regarding this article or you are in a similar case/situation, please visit our Legal Consultation center or send your inquiry email by clicking here. Our Korean qualified lawyer will answer your inquiry.
© 2020. All rights reserved.