Property donated to the foundation, brothers and sisters of the deceased receive ‘0 won inheritance’

The ‘reserve share system’ was introduced in 1977 to guarantee the legal heirs’ minimum share of inheritance regardless of the deceased’s will. Since inherited property mainly went to the eldest son, the purpose was to protect the right to survival of women and other children. The idea was to ensure the livelihood of the surviving family members by distributing the family property created through family labor as a reserve.

Since then, the social structure of Korea has changed rapidly, with households of three or fewer people becoming common and most people living independently. At the same time, there have been cases where bereaved family members who did not take care of the deceased for a long period of time or who abused the deceased file suit for retention and inherit the inheritance. On the 25th, the Constitutional Court put the brakes on the civil law provisions that support such situations, ruling them unconstitutional or inconsistent with the Constitution.

◇Illegal children and parents are excluded from inheritance

Mr. A, who passed away in Jeju Island in 2018 at the age of 107, left 1,000 pyeong of land to his ‘filial son’ who took care of him for the last 35 years. His son lived with Mr. A in Jeju and supported his mother, Mr. A, since he was around 72 years old. The son also spent 120 million won to treat Mr. A.

However, when Mr. A died, three other sons and daughters with whom he had no contact filed a lawsuit against the ‘filial son’, demanding that the land be divided. It is said that they have not had contact with their mother for over 30 years since they left Jeju. The basis for their lawsuit was the ‘reserve system’. These three, who said they did not care for her mother at all, could each claim half of her legal inheritance.

When singer Goo Hara died in 2019, her biological mother, with whom she had been separated for 20 years, claimed the right to inheritance. After her biological mother divorced when Gu was 9 years old, she did not take care of Gu at all. However, in the case of her Gu family, her parents became the first-rank heirs because she died without a spouse or children. Gu’s biological mother took 40% of the inheritance left by her daughter.

The Constitutional Court unanimously ruled that Article 1112, Paragraphs 1 to 3 of the Civil Act, which made this possible, were unconstitutional. The Constitutional Court said, “Recognizing the reserved portion of an heir (family member) who engages in immoral acts, such as abandoning the deceased (deceased) for a long period of time or mentally and physically abusing him or her, is contrary to the general public legal sentiment and common sense,” and added, “The reasons for loss of reserved portion are not separate.” He said, “The provisions of the current civil law that are not stipulated are unreasonable.” At the same time, the Constitutional Court ordered the National Assembly to revise the relevant article by the end of December next year.

◇Decedented siblings are also excluded from inheritance

Mr. Lee donated all his assets, including real estate, to five public interest foundations and passed away in March 2020. During his lifetime, Mr. Lee was unmarried and had no spouse or children. However, after Mr. Lee’s death, Mr. Lee’s siblings filed a lawsuit against five foundations, claiming that “the brothers and sisters should receive some of the assets that Mr. Lee left behind.”

Mr. Lee’s brothers and sisters did not contribute to the formation of Mr. Lee’s fortune. Nor did he help Lee support her mother. The reason they could demand a portion of the property donated by Mr. Lee to a public foundation was because of Article 1112, Paragraph 4 of the Civil Code. The clause includes recognition of the right to claim the deceased brothers and sisters’ inheritance when there are no other heirs.

On this day, the Constitutional Court unanimously ruled that this part was unconstitutional, rendering it invalid. The Constitutional Court said, “There is no valid reason to give a reserve share to the deceased’s brothers and sisters, even though their contribution to the formation of the inherited property and expectations of inheritance are hardly recognized.”

◇The filial son receives more

The Constitutional Court also made a judgment to the effect that ‘filial sons’ who took good care of the deceased during his or her lifetime or contributed to the formation of the deceased’s assets should be recognized for their rights to property gifted in return. Currently, when other bereaved families who have the ‘right to claim the reserved portion’ file a lawsuit for return, they have to surrender the property that has already been gifted, and the court distributes the reserved portion after adding up the assets.

This content is stipulated in Article 1118 of the Civil Code, and this time, the Constitutional Court decided with a unanimous opinion that it was unconstitutional. The Constitutional Court said, “Even if an heir who supported the deceased for a long period of time or contributed to the formation of the inherited property receives a portion of the property as a gift in return, under the current law, the donated property is included in the basic property for calculating the reserve, creating an unreasonable situation in which the property must be returned.” pointed out. One legal expert said, “This means that we need to be more considerate of filial sons when it comes to inheritance.”