[Published on November 19, 2024 edition of the "Korean Law Insights" column in the Korea Daily’s Economic Expert Section]
Wills Take Priority but Are Strictly Validated
Heirs Can Be Proven Through U.S. Birth or Marital Status
Over the years, I have handled numerous cases related to Korean inheritance, and there are several questions which clients commonly raise. Due to the differences between the Korean and U.S. legal systems, misunderstandings often occur. Moreover, some individuals exploit the lack of familiarity with Korean law and culture among those residing in the U.S. To prevent such issues, it is helpful to be aware of the following information.
Korean inheritance law fundamentally follows the wishes outlined in a will. That is, the will left by the deceased (the testator) during their lifetime is executed upon their death. However, Korean civil law strictly prescribes the form of wills, and if these formalities are not followed, the will is rendered invalid. In some cases, inheritance involves both Korean and U.S. laws, requiring careful examination of private international law and the inheritance laws of both countries. Therefore, if you wish to draft a will during your lifetime, it is essential to seek professional guidance.
As mentioned above, because Korean inheritance prioritizes a will, the first step after someone's death is to determine whether a will exists and, if so, whether it was properly executed. If there is a dispute over the format or content of the will, the matter may be resolved through the court. However, it is preferable for the heirs to negotiate and reach an agreement among themselves if possible. This is because involving the court can lead to significant time and expense, and disputes among heirs may escalate, potentially damaging familial relationships. Naturally, the best way to avoid such situations is to leave a well-prepared will during your lifetime.
If no will exists, inheritance will proceed according to Korean inheritance law. Factors such as the nationality and residence of the deceased, as well as the nature of the inheritance property (whether it consists of movable or immovable assets), will determine which country’s laws apply. If Korean inheritance law governs, the inheritance is distributed to the statutory heirs in the respective shares as outlined by Korean civil law. Under Korean civil law, statutory heirs are categorized as follows: (1) First priority: Direct descendants (e.g., children, grandchildren). (2) Second priority: Direct ascendants (e.g., parents, grandparents). (3) Third priority: Siblings of the deceased. (4) Fourth priority: Collateral relatives within four degrees of kinship. The spouse of the deceased is considered an equal co-heir with the first and second-priority heirs. If there is a surviving spouse but no first- or second-priority heirs, the spouse inherits alone. As for statutory shares, each heir is generally entitled to an equal portion. However, the spouse receives an additional 50% share compared to other heirs.
Lastly, statutory inheritance means that upon the death of the deceased, ownership is automatically transferred to the legal heirs according to their respective statutory shares, without the need for any special procedures. The processes of registration or transfer of ownership are merely for public record. The absence of such procedures does not imply that inheritance has not occurred. However, to transfer inherited property to a third party, registration or transfer of ownership must be completed.
Regarding statutory inheritance, there are some additional points to note. First, a spouse refers only to a legally married partner (under statutory law). This does not include common-law partners, cohabiting individuals, or divorced spouses. Importantly, legal marriage does not necessarily mean the marriage must have been registered in Korea; marriages registered solely in the U.S. are also recognized. However, marriages resulting from bigamy are invalid and not recognized as legal.
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Jin Hee Lee/K-Law Consulting Korean Attorney
[Reference link in original Korean]
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