[Published on May 8, 2024 edition of the "Korean Law Insights" column in the Korea Daily’s Economic Expert Section]
Siblings' Legitime Portion Rights Lose Effect
Legislation Planned to Define Forfeiture of Legitime Portion
Recently, the Korean Constitutional Court's ruling of unconstitutionality on certain provisions of the Civil Code regarding the legitime portion system has become a hot topic. The legitime portion system ensures that a portion of the statutory inheritance share is reserved for statutory heirs whose shares may have been infringed upon by gifts or bequests made by the deceased. Under Korean civil law, the legitime portion is set at half of the statutory share for first-priority heirs (spouses and/or direct descendants such as children and grandchildren) and second-priority heirs (spouses and/or direct ascendants such as parents and grandparents), and one-third for third-priority heirs (siblings).
In fact, the legitime portion system has faced criticism for potentially contradicting the deceased's wishes and for rigidly guaranteeing certain inheritance shares. These concerns have led to multiple challenges and petitions to the Constitutional Court, culminating in a significant ruling.
First, the Court's decision has rendered siblings' legitime portion rights immediately void. The Constitutional Court found it unconstitutional to grant legitime portion rights to siblings, as they rarely contribute to the formation of the estate and have limited reasonable expectations of inheritance. Siblings only inherit in the absence of first- and second-priority heirs or if those heirs renounce their inheritance rights. Since such cases are rare, the Court determined that maintaining the legitime portion system for siblings is no longer justified.
While the legitime portion rules for first- and second-priority heirs remain effective for now, the National Assembly is expected to amend the law to introduce limitations on exercising legitime portion rights, such as grounds for their forfeiture. The Court deemed it unconstitutional that current civil laws do not provide for the loss of legitime portion rights for heirs who engage in egregious misconduct, but it refrained from issuing a simple ruling of unconstitutionality for these provisions. Doing so would have rendered the rules for first- and second-priority heirs immediately void, potentially causing legal confusion and gaps. Instead, the Court issued a ruling of constitutional nonconformity, allowing the current rules to remain in effect until December 31, 2025, providing time for legislative amendments. Additionally, legislative changes are expected to exclude assets gifted by the deceased to caregiving heirs or those who contributed significantly to the formation of the estate from being subject to legitime portion claims.
With the recent Constitutional Court ruling, it should not be misunderstood that the entire legitime system has been deemed unconstitutional, nor should it be hastily concluded that the system will be completely abolished in the future. This is because the Constitutional Court clearly stated that the legitime system itself is not in violation of the Constitution.
Moreover, some have interpreted the recent decision as if the so-called "Goo Hara Act," which aims to disqualify heirs who have committed immoral acts from inheritance, will be implemented immediately, or that filial heirs will now be entitled to a greater share of inheritance. It is true that the Constitutional Court ruled with the intent that legitime rights should be forfeited due to immoral acts and that heirs who have significantly contributed should be better protected. However, it is important to note that legitime rights are merely a portion of inheritance rights. The Constitutional Court neither ruled on the exclusion of inheritance rights nor addressed grounds for disqualification from inheritance. Furthermore, apart from the sibling’s legitime rights, which were deemed unconstitutional, the remaining aspects of the system remain valid under the current law until the National Assembly legislates in accordance with the Court's ruling. Therefore, such interpretations should be approached with caution. For reference, the "Goo Hara Act" was not passed in the 20th National Assembly and was discarded. It is currently pending in the 21st National Assembly, which has a term that ends on May 29, 2024.
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Jin Hee Lee/K-Law Consulting Korean Attorney
[Reference link in original Korean]
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