Korea’s Statutory Inheritance Reserve Deemed Partially Unconstitutional by Constitutional Court of Korea

The Korean Reserved Portion of Inheritance (유류분) in the Korean Civil Act is a system that guarantees heirs a minimum share of the estate, regardless of the wishes of the deceased in a will(hereinafter “the decedent”). In a recent ruling, the Korean Constitutional Court ruled that while the reserved portion of inheritance system itself does not violate the Korean Constitution, it declared the system is unconstitutional in part.

Korea’s Reserved Portion of Inheritance is comparable to a Spousal Share (also called forced, elective, or statutory share of inheritance in common law jurisdictions), but it is extended to other family members. This share can not be eliminated by a will. For an article on inheritance taxes please see: Inheritance Tax System Amendments Proposed.

Korea’s Legal Reserve of Inheritance Deemed Partially Unconstitutional by Con. Court

● The Korean Civil Act Article 1112(4) recognized reserved portions not only for the decedent’s children, spouse, and direct ancestors but also for siblings. However, the Korean Constitutional Court determined that, given modern family structures such as the rise of nuclear families and single-person households, the provision granting siblings a reserved portion is unconstitutional. As a result, this provision immediately lost its effect.

● The current Korean Civil Act contains no provisions for disqualifying unfilial heirs, such as children or parents who neglected the decedent. The Court ruled that the lack of provisions to disqualify such heirs or to account for the contributions of these heirs who cared for the decedent or helped maintain and grow the decedent’s wealth is unconstitutional. However, to prevent legal confusion from sudden changes, the Court decided that the current Civil Code will remain in effect until the end of next year (December 31, 2025).

The Korean Constitutional Court affirmed that the reserved portion system still serves to maintain family solidarity and that gender equality has not yet been fully realized, thereby supporting the constitutionality of the system itself. However, the ruling marks a significant change, as it limits the inheritance rights of unfilial heirs while granting greater recognition to heirs who cared for or supported the decedent.

NY attorney Sean Hayes is the only non-Korean to have worked as a government attorney for the Korean court system and one of the first non-Koreans to be a regular member of a Korean law faculty. He is rated as a Top Attorney by LawAsia and other publications. Schedule a call with Sean Hayes at: Schedule a Call.