Spouse's Inheritance Share 'Always 1.5' Leaves Mother Feeling Sad

Mr. A (in his 60s) and his husband Mr. B (in his 70s), who had lived together for 35 years, recently experienced Mr. B's death. The property left by Mr. B was a single apartment in Seoul registered under Mr. B's name, where Mr. A had been living with him. However, two children born from Mr. B's previous marriage contacted Mr. A, claiming that they also have shares in the apartment and demanded a division of the inheritance according to legal shares. These children of Mr. B's ex-spouse had no contact with Mr. B for the past 35 years. Since Mr. B left no separate will at the time of his death, Mr. A now faces a situation where he must divide the inheritance shares with both the children of Mr. B's ex-spouse and his own children with Mr. B.

Recently, Mr. C (in his 70s), who lost his wife, sought legal advice promptly. He had purchased a building in Seoul under his wife's name with money he earned while working, but now that his wife has passed away, he must divide it with their children. Especially after their third son passed away early, he now has to share with his daughter-in-law and grandchildren, making the calculation of his own inheritance share complicated. Although he must divide the inheritance shares including the substitute heirs, he is cautious about filing a lawsuit against his children and visited a law office to explore other options.

Disputes related to inheritance are increasing every year. As the statutory inheritance shares fail to reflect contemporary realities, disputes over the spouse's contribution share have significantly increased. Calls to revise the spouse's statutory inheritance share of 1.5, which has remained unchanged for 35 years, are gaining momentum.

Substitute heir = refers to the 'lineal descendants or spouse of the deceased heir' who become heirs in place of the deceased or disqualified heir (the person to be substituted) if the heir dies or becomes disqualified before the commencement of inheritance. In Case 2, the third son, who was an heir, died before his mother, so the third son's spouse and children hold the status of ‘substitute heirs.’

Inheritance Cases Increased by 61% Compared to 10 Years Ago

According to the Judicial Yearbook, in 2023, the number of inheritance cases among family non-contentious cases filed nationwide courts was 57,567, an increase of 5,941 cases compared to 51,626 cases in 2022. The number of inheritance cases was 35,030 in 2013 and has been increasing as follows: 37,002 in 2014, 38,431 in 2015, 39,125 in 2016, 38,440 in 2017, 42,579 in 2018, 43,799 in 2019, 44,927 in 2020, and 46,496 in 2021. As of 2023, the number has risen by about 61% compared to 10 years ago.

Among family non-contentious cases, inheritance-related cases include disputes over contribution shares, division of inherited property, limited acceptance of inheritance (approval of cancellation reports), and disposition for preservation of inherited property.

The current Civil Act allows inheritance property to be divided according to the deceased's will if one exists (Civil Act Article 1012). If the deceased left no will, heirs receive inheritance shares uniformly (Civil Act Article 1009). At this time, the spouse's inheritance share is increased by half.

For example, if the deceased left a 2 billion KRW apartment and had a spouse and two children, the spouse and children 1 and 2 would divide the property in a ratio of 1.5:1:1, inheriting approximately 858 million KRW, 571 million KRW, and 571 million KRW respectively.

The problem is that this provision has remained unchanged for over 35 years since its revision in January 1990. Because the '1.5' ratio applies uniformly to all spouses, spouses who believe they contributed more to the formation of the property than the legal ratio must file lawsuits claiming contribution shares to contest their rightful portion. Choi Hosik (62, Judicial Research and Training Institute Class 27), a former chief judge of the Seoul Family Court and representative lawyer of WooSeung Law Firm, said, “Our spouse inheritance share system needs to change,” adding, “An inheritance system that fits the changed world is urgently needed.” He expressed the opinion that instead of a uniform spouse inheritance share of 1.5, a segmented revision reflecting contemporary realities is necessary.

"There is a Need to Expand Spouse Contribution Shares"

There is a consensus in the legal community that revision of the spouse inheritance share is necessary. Jinmi Kim (44, Class 43), a family law attorney at Jeha Law Firm who mainly handles family cases, said, “The problem is that the spouse's contribution to the formation of the deceased's property is not properly reflected. While there may be cases with no contribution, even in cases with significant contribution, the share is limited to 1.5, forcing spouses to claim additional contribution shares, which leads to unnecessary and exhausting disputes.” Kim added, “To reduce disputes among heirs and rationally organize inherited property, it is necessary to expand the spouse's contribution share.”

A family law attorney at a major law firm also said, “In most countries like the United States, if the marriage period reaches a certain length, the spouse is often entitled to half of the deceased's property,” adding, “The current 50% addition for spouse contribution is far too low.” He noted, “In Korea, many people die without having written a will, so a readjustment of the spouse contribution share is necessary.”

Eunjung Lee (52, Class 33), a former family juvenile judge and attorney at Dongin Law Firm, said, “If the spouse contributed to the deceased's acquisition and accumulation of property, the current regulations should be relaxed to allow for an increase,” adding, “If legal revision is difficult, courts could flexibly accept claims for contribution shares.”

Court Launches Research Group on Related Laws

To study family law related to family systems reflecting changed social conditions and family relationships, the court established the ‘Family Law Research Community (Chairman Kim Si-cheol, Chief of Judicial Research and Training Institute)’ in July 2024. This was in response to the problem that traditional family concepts are being shaken, family cases are increasing annually, and the current family law and precedents do not reflect the changed social conditions and family relationships.

Reporter Suhyun Han, Legal Times

※This article was written based on content provided by Legal Times.

※This article is based on content supplied by Law Times.