[The Amendment To Korean Civil Act] Introduction Of The Claim Right For Loss Of Inheritance Rights
2022. 1. 19.
I hope this article is helpful for Koreans who have families and related assets in Korea.
I remember one time I talked to one of my clients about his family in Korea. Even though he lived with his mother in the U.S. and took care of her with all the support while other brothers living in Korea did not take care of her at all, he and his brothers jointly inherited his mother’s estate by the same shares. He thought this seems not fair to him to inherit his mother’s property together. The only thing that I could tell him was that it would be better for him if his mother had written a will before her death under Korean law.
However, It will be different in the near future.
The amendment to the Korean Civil Act, including the loss of inheritance rights (a.k.a. Gu Hara Act), was passed by the Korean Cabinet meeting on June 15. 2021 and submitted to the Korean National Assembly. It is expected to take effect in the near future unless there are unexpected circumstances. This is to prevent those who neglect or abuse their obligations to support their heirs from inheriting.
First, the loss of inheritance rights could be claimed if the “person who will be the inheritor” (A) breaches the obligation to support the inheritee materially or (B) commits a serious crime, abuse, or other extremely unfair treatment against the inheritee, inheritee’s spouse, or inheritee’s immediate blood relatives.
In those cases, the inheritee may claim the loss of inheritance rights to the Korean family court before the commencement of inheritance (before the inheritee passes away), and the Korean family court may declare the loss of inheritance rights in consideration of various circumstances. In terms of consideration of various circumstances, it is difficult for the inheritee to claim the loss of inheritance rights before the commencement of inheritance because the inheritee may not receive even the lesser support. The inheritee may express his/her intention to claim the loss of inheritance rights before the death with a will, and, if the inheritee passes away and the inheritance commences, the executor of the will shall file a lawsuit to the Korean family court according to the will.
Not only the inheritee but also inheritors can claim the loss of inheritance rights. The inheritors can claim the loss of inheritance right within 6 months after inheritance commences and when the inheritors have actual knowledge of (1) the “person who will be the inheritor” actually did (A) or (B) and (2) he/she inherited the estate.
Also, please note the following:
Since the acts of the "person who will be the inheritor" is one of the grounds of the claim, the acts of the inheritor that occurred after the commencement of inheritance do not fall under the ground of the claim.
This claim may apply not only to the inheritance of a child due to the death of a parent but also to the inheritance of a parent due to the death of a child.
In the case of a claim for loss of inheritance rights due to (B), since it is not premised on the obligation to support, it includes not only the inheritee but also his/her spouse and immediate blood relatives. For example, if a child commits a serious criminal act or abuses against another child of the inheritee, the victimized child may claim the loss of inheritance rights against the other child when his/her parent dies and the children become co-inheritors.
If the loss of inheritance rights is confirmed due to the inheritee's claim before the commencement of inheritance, the "person who will be the inheritor" will not be the inheritor even if the inheritance commences. On the other hand, if the loss of inheritance rights is confirmed due to the co-inheritors’ claim after the commencement of inheritance, the effect of the loss occurs retroactively to the commencement of inheritance (i.e., it is treated as not an inheritor from the commencement of inheritance).
However, regarding the retroactive effect, this Korean Civil Act amendment protects the stability of transactions by "However, it does not harm the rights of third parties." For example, even if inheritor A sells the inherited property to a third party and the claim of the loss of inheritance rights against inheritor A is confirmed after the transaction, the third party's acquisition of ownership continues to be valid.
In addition, there is one thing that you should know in terms of the effect. If the inheritance rights are lost due to this amendment, the legal reserve (a legal portion of an inheritor) will also be deprived. The legal portion of inheritance is the minimum amount that is legally guaranteed to the inheritor, but if the inheritance rights are lost as above, the legal reserve will not be guaranteed.
As a way to eliminate the effect of the loss of inheritance rights, this amendment to the Civil Act has established a "forgiveness" clause by which only the inheritee can forgive the person and withdraw the claim for the loss by a notarized statement or a will. If the forgiveness is granted, the existing effect of the loss becomes invalid and will not be able to claim the loss again in the future.
This amendment will be applied to the inheritance that commences after its implementation.
Since the loss of inheritance rights is a relatively new law, and related practices and precedents have not yet been established, there is a lot of room for interpretation. Therefore, you must prepare or respond with professionals from the beginning regarding any kind of issues related to the loss of inheritance rights. In particular, many Korean residents in the United States with families and related assets in Korea should continue to pay attention to take advantage of or respond to the loss of inheritance rights.
This article is for general guidance and cannot be a legal opinion as applied to individual issues. If you have any questions or concerns, please feel free to contact email@example.com or (424) 218-6562 for a legal consultation with lawyer Jin Hee Lee.