Under Korean inheritance law, inheritance takes effect immediately when a person passes away.  The Korean inheritance law, Part V of the Civil Act, provides who becomes the heir and beneficiary of the deceased person’s property, also known as the estate.

However, heirs and beneficiaries do not always receive the entire estate.  There are specific rules and restrictions on how the estate is distributed under Korean inheritance law, making the process more complex.

In this article, our Korean inheritance lawyer will guide you through the basic rules and practices of inheritance in Korea.  Whether you are navigating Korean inheritance law as a foreigner or need help from a Korean inheritance lawyer, understanding the basics is crucial for securing your rights.

When Does Korean Inheritance Law Apply?

Before exploring the details of Korean inheritance law, it’s essential to understand when Korean inheritance law becomes the governing law in an international inheritance case.

Every country has its own set of choice of law rules that determine which laws apply to cross-border inheritance situations.  In Korea, these rules are set out in the Act on Private International Law.  According to this Act, unless the deceased explicitly designated another country’s law through a valid will, the law of the deceased’s nationality will be applied as the governing law.

Another important aspect to consider is renvoi, a rule that can redirect the application of law back to another jurisdiction.  Article 22 of the Act on Private International Law explains this concept:

Article 22 (Application of Law of the Republic of Korea under Foreign Law) (1) Where a foreign law is designated as the applicable law under this Act, and where the law of the Republic of Korea shall apply under the law of that foreign country, the law of the Republic of Korea (excluding laws regarding the designation of the applicable law) shall govern.

In simpler terms, when the deceased is not a Korean citizen and has not left a will that designates the governing law, we must look to the choice of law rules of the deceased’s home country.  And, if that foreign country’s rules refer back to Korean law, then Korean inheritance law ultimately becomes the governing law.

This is especially relevant for countries that handle inheritance differently for movable and immovable property.  For example:

• In the United States, the law of the deceased’s domicile governs the inheritance of movable property (e.g., personal items or bank accounts), while the law of where the property is situated applies to immovable property (e.g., real estate).
• Therefore, if an American citizen whose domicile was New York passes away in Korea without a will, a Korean court will apply Korean inheritance law to the deceased’s Korean bank accounts, while the New York intestate succession law will govern the inheritance of any real estate located in New York.

Read more: Choice of Laws Is Critical When It Comes to an International Inheritance

Who Becomes the Heirs and How Is the Estate Distributed Under Korean Inheritance Law?

The fundamental rule under Korean inheritance law is that the deceased person’s property is distributed according to their will.  This allows individuals to designate beneficiaries, even if those individuals are not legally recognized heirs.  A valid will can override the default distribution rules, ensuring that the estate goes to the intended beneficiaries.

What Happens If There Is No Will?

When there is no valid will, the estate is distributed according to intestate succession rules under Korean law.  These rules determine who is entitled to inherit and how the estate will be divided.

Order of Heirs in Intestate Succession

Under the intestate succession rules of Korean inheritance law, beneficiaries are designated in the following order:

1. Direct descendants (children or grandchildren)
2. Direct ascendants (parents or grandparents)
3. Siblings
4. Relatives within the 4th degree of collateral consanguinity

If there are multiple individuals within the same rank, the person with the closest relationship to the deceased has priority.  When there are multiple individuals of the same rank and degree of relationship, they become co-heirs and receive equal shares of the estate.

Adopted Children and Their Rights to Inherit

Adopted children have the same inheritance rights as biological children under Korean estate law.  They have full inheritance rights from their adoptive parents, just like any natural-born child. However, the question remains: can adopted children also inherit from their biological parents?  For a detailed discussion on this, please refer to our previous article on the inheritance right of the adopted child.

Surviving Spouse’s Inheritance Right and Share

The surviving spouse holds a unique position under Korean inheritance law.  If the deceased leaves no relatives in the first rank (such as children) or second rank (such as parents), the spouse becomes the sole heir.  However, if there are heirs in the first or second rank (such as children or parents), the spouse will co-inherit with them.

Korean inheritance law provides additional protection to the surviving spouse by granting them a larger share of the estate.  Under intestate succession rules of Korean inheritance law, the surviving spouse receives 50% more than each of the other co-heirs.

For example, let’s say the deceased is survived by a spouse, two children, and both parents.  In this case, the spouse and the two children become co-heirs, while the parents do not inherit. The estate is distributed as follows: each child receives 2/7 of the estate, and the spouse receives 3/7.

When a Parent or a Spouse Dies Before the Deceased

Korean inheritance law recognizes succession per stirpes and lapse to ensure inheritance rights are passed on when an heir dies before the deceased.  In practical terms, if a son dies before his parent, his share of the parent’s estate will pass down to his own children or spouse.  This ensures that the inheritance remains within the family, even when an intended heir is no longer alive.

What happens if the deceased son’s spouse remarries before the death of the parent-in-law?  Under Korean inheritance law, if the surviving spouse remarries, they lose their right to inherit from the ex-husband’s family.  This is because remarriage legally ends the connection with the deceased spouse’s family, making the former spouse ineligible for succession per stirpes.

How to Calculate the Actual Inheritance Share Under Korean Inheritance Law

While Korean inheritance law outlines the statutory shares for each heir, the actual calculation of what each heir will eventually receive can be far from straightforward.

The complexity often arises when certain heirs have received valuable gifts from the deceased during their lifetime, or have provided significant financial or physical support to the deceased.  In such cases, simply dividing the remaining estate according to the statutory share may be unfair.  To address this, Korean inheritance law provides two legal mechanisms that help achieve a fairer outcome: special contributory share and special benefit.

Special Contributory Share

If an heir has made a special contribution to the deceased, such as taking care of the deceased or helping maintain or increase the value of the estate during a lifetime, they may be entitled to an additional share of the inheritance.  This is known as a special contributory share.

Determining who should receive a special contributory share and how much they should receive is generally left to an agreement among the heirs.  However, if the heirs cannot agree, the court will make the decision at the request of the contributing heir.

We have previously published an article on this topic.  If you’re interested, please refer to our detailed discussion on special contributory shares.

Special Benefit

If an heir received substantial gifts or support from the deceased during their lifetime, this is referred to as a special benefit.  Korean inheritance law treats such benefits as advance payments of the heir’s inheritance share.  Therefore, the value of any special benefit is deducted from the heir’s share when calculating the final distribution of the estate.

For example, let’s say a father dies without a will, leaving two sons as co-heirs, with the remaining estate valued at $1 million.  In this case, each son’s statutory share would be 50% of the estate.  However, if the elder son had received a gift of property worth $400,000 from the father while he was still alive, this amount is considered an advance payment of the inheritance.  Thus, the base of the estate value to be distributed is adjusted to $1.4 million instead of $1 million.   The younger son’s share becomes $700,000 (50% of $1.4 million), while the elder son’s share is $300,000 ($700,000 minus the $400,000 already received).  Therefore, the remaining estate of $1 million is distributed as $700,000 to the younger son and $300,000 to the elder son.

In Korea, it is common for heirs to receive support from parents, whether it be in the form of cash or real estate.  Accurately determining the value of the estate and finding these prepaid benefits are crucial.  Working with a skilled Korean inheritance attorney can help ensure that the final distribution is fair and follows the law.

Can a Deceased Disinherit an Heir Entirely? – Elective Share

As mentioned earlier, the rules of intestate succession only apply when there is no valid will.  But does this mean the deceased can freely dispose of their estate by creating a will?

The answer is not entirely.  Under Korean inheritance law, the deceased cannot completely disinherit certain heirs.  This is due to the elective share—a statutory minimum portion of the estate that must go to specific heirs, regardless of the contents of the will.  This provision protects heirs from being left out or receiving an unreasonably small share of the estate.

Currently, the elective share under Korean inheritance law is 50% of the intestate succession share that an heir would have received if no will existed.

For example, let’s say the deceased left a will naming their spouse as the sole beneficiary excluding his two children from inheriting.  Even in this case, the two children can still claim their elective share.  In this example, each child is entitled to 1/7 of the estate, which represents 50% of their intestate share.

Elective shares are recognized not only when the deceased has left a will that disinherits certain heirs, but also in cases where pre-death gifts to other co-heirs are so large that the remaining estate is insufficient to provide other heirs with their statutory share.  In such cases, the affected heirs may claim their elective share against another heir who received the gifts.

Recent Developments on Elective Share Law

The Constitutional Court of Korea made a ruling on April 25, 2024, stating that the elective share system itself is not unconstitutional. However, the court found the following provisions are unconstitutional.

First, the provision granting elective shares to the siblings of the deceased was ruled unconstitutional and lost its effect immediately.

Second, the court found unconstitutionality in the law, such as:

• Failing to disqualify heirs who neglected the deceased.
• Not considering the special contribution of heirs who cared for the deceased or helped maintain and grow the estate in calculating the elective share.

To avoid sudden legal confusion, the court ruled that the current elective share provision in the Civil Act would remain in effect until December 31, 2025.  As of October 2024, the Civil Act has not yet been revised.

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.  Probate is not required in Korea.  When there are multiple heirs, they hold the estate in co-ownership, meaning they share ownership of all assets.  This process does not require additional steps like title registration.

To end this co-ownership and distribute specific portions of the estate to individual heirs, the heirs must reach an agreement among themselves.  If an agreement cannot be made, an heir can apply for a court order to divide the estate.

Filing a lawSuit When the Inheritance Right Was Infringed

If a non-heir unlawfully takes ownership of the estate or if an heir takes more than their legitimate share, it constitutes an infringement of inheritance rights.  In such cases, the affected heir can file a lawsuit to correct the situation.

Common cases of inheritance infringement in Korea are as follows:

1. The deceased left behind a wife and child, but the deceased’s brother took ownership of the estate. (The estate should rightfully belong to the wife and child)
2. The deceased left two children, but the elder sibling took everything. (The elder sibling is entitled to only 50% of the estate)

To correct an inheritance infringement, the affected heir can file a lawsuit. This kind of legal action must be taken within:

• 3 years from discovering the infringement, or
• 10 years from when the infringement occurred,
  whichever comes first.

If the court rules in favor of the affected heir, it will order the infringer to return the property.  If the defendant refuses to comply, standard debt collection procedures can be used to enforce the judgment.

Read More: Korean Lawyer Explains Debt Collections In South Korea – Overview

Transparency and Knowledge Are Essential When Dealing with Korean Heirs

In Korean inheritance disputes, many conflicts arise from contesting a will or enforcing the elective share.  Other common issues include disagreements over special contributory shares and special benefits, which we will cover in future posts.

It is worth noting that there are so many cases where Korean heirs push a non-Korean heir to hand over certain legal documents quickly, claiming they are needed to handle estate distribution or tax filings.  Unfortunately, these requests often lack transparency. Heirs may fail to fully disclose the status of the estate or the non-Korean heir’s rights, and in some cases, may even provide incorrect information about Korean inheritance laws and practices.  This lack of transparency can put foreign heirs at a significant disadvantage, leading to potential financial losses for those who do not have access to reliable information about Korean inheritance law.

Why You Need a Korean Inheritance Lawyer

Korean inheritance law is complex, and understanding your rights as a foreign heir requires careful navigation. To protect yourself and ensure fair treatment, it is critical to consult an experienced Korean inheritance lawyer before handing over any legal documents.  A knowledgeable attorney can help you understand your rights, clarify the legal requirements, and prevent misunderstandings that could jeopardize your share of the estate.

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