[Published on April 9, 2024 edition of the "Korean Law Insights" column in the Korea Daily’s Economic Expert Section]
Inheritance Rights Can Arise Through Adoption or Remarriage
Protecting Inheritance Rights and Preparing for Disputes
Among Koreans residing in the U.S., many are concerned about potential inheritance issues in Korea if their parents or they themselves own assets in the country. These concerns are especially prevalent in families with unique circumstances, such as those involving divorce, remarriage, or adoption—situations that are becoming increasingly common both in the United States and Korea. Given that inheritance rights under Korean law largely arise from blood relations or spousal relationships, these concerns are not unfounded. Today, I’d like to discuss the complexities of inheritance issues related to adoption, divorce, and remarriage under Korean inheritance law.
First, blood relations include not only biological parent-child relationships but also legally established relationships through adoption. Therefore, both biological children and legally adopted children are, in principle, entitled to inherit their parents' property.
Under Korean inheritance law, there are four main types of adoption that establish a legal blood relationship: general adoption, full adoption, institutional adoption, and international adoption. Among these, general adoption and full adoption differ significantly. General adoption is established through an agreement between the adoptive parents and the adoptee. In this case, the adoptee maintains ties with their biological parents and retains their biological family name. As a result, the adoptee can claim inheritance rights from both their adoptive parents (legal blood relationship) and their biological parents. On the other hand, full adoption, established through a court ruling, severs the legal relationship with the biological parents. The adoptee takes the family name of the adoptive parents and becomes their legal descendant. Consequently, the adoptee holds inheritance rights exclusively in relation to the adoptive parents, with no inheritance rights from the biological parents.
Next, in the case of spousal relationships, inheritance rights can only be claimed in a legally recognized marriage, i.e., a marriage that has been registered. In a cohabiting relationship without a legal marriage, also known as a de facto marriage, inheritance rights are not recognized. Therefore, in the case of remarriage, inheritance rights can be recognized between the remarried spouses. However, the children of a remarried spouse, unless they are adopted by the stepparent, cannot claim inheritance rights upon the death of the stepparent.
For example, if Father A divorces B and then remarries C before passing away, B, the ex-wife, cannot inherit A's property because the legal marriage was terminated by the divorce. However, X, the child born between A and B, retains inheritance rights because the blood relationship with the father is not severed by the divorce. As a result, child X will inherit the property of both the stepparent C and father A jointly. Even if there is another child, Y, from the marriage between C and her ex-husband, Y cannot become an heir to father A's property. However, if the stepparent C passes away later, X will not inherit from C's estate, as there is no blood relationship between X and the stepparent, unless X is adopted by C. In this regard, X may feel frustrated about not being able to inherit the property of the stepparent, which includes the assets inherited from father A. This feeling may be especially strong if the father had significant wealth, if the period during which the father and stepparent were together was short, or if the stepparent had children Y from a previous marriage. In such cases, X might feel that the situation is unfair.
If proper preparation or management is not made for complex inheritance relationships arising from blood relations and spousal relationships, it can lead to not only issues with inheritance registration and inheritance tax, but also difficult inheritance disputes that may be hard to resolve. Therefore, it is advisable to consult with a professional at an early stage to prepare for the procedures, prevent disputes, and protect one's inheritance rights.
▶Inquiries: (424)218-6562
Jin Hee Lee/K-Law Consulting Korean Attorney
[Reference link in original Korean]
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