Is Forced Heirship Stronger Than a Will?… Constitutional Court Holds Public Hearing Today

The Constitutional Court will hold a public hearing on whether the statutory reserved portion system under the Civil Act, which grants heirs an absolute right to a certain portion of the statutory inheritance share regardless of the deceased's wishes, is unconstitutional.

On the 17th at 2 p.m., the Constitutional Court will conduct a public hearing on a constitutional complaint case questioning whether the reserved portion provisions in the Civil Act infringe on the property rights of the deceased and the donees (those who received gifts). This is the first time the Constitutional Court has held a public hearing on a case related to the reserved portion system.

Seoul Jongno-gu Constitutional Court Grand Bench. Photo by Jinhyung Kang aymsdream@

The public hearing will address two constitutional complaint cases that the Constitutional Court is currently consolidating for review.

The first case involves Mr. Yoo, who before his death gifted real estate to his daughter-in-law (the spouse of his son who died before him) and two grandchildren. After Mr. Yoo's death, his daughters filed a claim against the daughter-in-law and grandchildren to return the reserved portion.

The daughters argued that if their mother had not gifted property to the daughter-in-law and grandchildren during her lifetime, they would have received an inheritance amount corresponding to half of their statutory share reserved portion, and since they received less than that, they filed a lawsuit demanding the difference be returned.

The second case involves Mr. Kim, who established a public interest scholarship foundation and donated his property to it before his death. After his death, his children filed a claim against the foundation to return the reserved portion.

The claimants in both cases requested the courts during civil trials to refer the matter to the Constitutional Court for a constitutional review, but when the courts dismissed the requests, they directly filed constitutional complaints with the Constitutional Court.

The reserved portion system guarantees half (for spouses, sons, and daughters) or one-third (for parents and siblings when there are no spouses or children) of the statutory inheritance share to protect the survival rights of the bereaved family.

If the actual inheritance amount received by each heir from the deceased's estate is less than the reserved portion, the heir can claim the difference from other heirs or third parties who received gifts or bequests (gifts made by will) during the deceased's lifetime.

The reserved portion for each heir is half or one-third of the statutory inheritance share they would have originally received if there were no lifetime gifts or bequests.

The base property for calculating the reserved portion includes gifts made by the deceased within one year before death. However, gifts made to co-heirs are included in the base property without any time limitation.

In this constitutional complaint case, the Constitutional Court included all provisions related to the reserved portion except for Article 1117 concerning the statute of limitations for claims to return the reserved portion, and Articles 1112 and 1113, which define who the reserved portion right holders are and how to calculate the reserved portion.

The issues in this case include: ▲whether the legislative purpose of the reserved portion system under the Civil Act remains valid despite social changes ▲whether there are problems with the uniform and standardized current system ▲whether including gifts or bequests in the base property for calculating the reserved portion without considering their purpose or nature contradicts the essence of the inheritance system or public interest ▲whether prohibiting the waiver of the reserved portion before inheritance commencement is problematic ▲and whether not considering heirs who contributed by supporting the deceased is an issue.

The claimants, who filed civil lawsuits demanding the return of the reserved portion and submitted this constitutional complaint to the Constitutional Court, argue that due to social changes such as nuclear families, increased life expectancy, and improved status of women, there is no longer a reason for the reserved portion system to exist.

They claim that the reserved portion system was necessary in the past to protect female heirs when inheritance was mainly distributed to the eldest son, and wives or daughters received relatively little, but that is no longer the case.

Furthermore, the claimants argue that the deceased's freedom to dispose of property should take precedence over inheritance rights, but the reserved portion system excessively protects inheritance rights against the deceased's wishes and undermines the essence of the inheritance system, which is that only the remaining estate at the time of the deceased's death is subject to inheritance.

Moreover, the current system does not provide for causes of loss of the reserved portion, so it uniformly recognizes the right to claim the return of the reserved portion even for unfilial heirs and includes donations to charitable organizations that align with public interest as subjects of reserved portion return claims, which is problematic.

On the other hand, the Ministry of Justice holds the position that the reserved portion system should be maintained for now.

While acknowledging the need to revise the reserved portion system to reflect social realities due to changing times, they believe it is a matter that should be decided through sufficient social discussion and legislative policy.

They also argue that the reserved portion system does not completely restrict the deceased's freedom to dispose of property but recognizes it to some extent while also considering the need for the bereaved family to maintain their basic livelihood, so there is no problem.

At the public hearing, Professor Hyun So-hye from Sungkyunkwan University School of Law and Professor Seo Jong-hee from Yonsei University School of Law will appear as expert witnesses for each side and present their opinions.

The Constitutional Court is currently reviewing about 40 constitutional complaints and constitutional review cases that point out the unconstitutionality of the reserved portion system. After hearing statements from the claimants' representatives, interested parties (Ministry of Justice), and expert witnesses at the public hearing, the Court plans to make a final ruling on the constitutionality of the reserved portion provisions in the Civil Act.

Recently, lower courts have increasingly accepted requests for constitutional review, pointing out the unconstitutionality of the Civil Act provisions on the reserved portion. In March, the Supreme Court issued its first ruling to curb mechanical application of the reserved portion, recognizing that land gifted by a mother to a child who cared for her alone for 35 years until she died at age 107 should be excluded from the base property for calculating the reserved portion as "consideration for care."

The reserved portion system became a social issue in 2019 when the late Goo Hara passed away. At that time, Goo's biological mother, who had run away about 20 years earlier, suddenly appeared and demanded her inheritance share, sparking public outrage, but there was no legal way to block the mother's exercise of rights. Ultimately, Goo's mother inherited Goo's estate at a 40:60 ratio with Goo's brother. Although the so-called "Goo Hara Law," which would deprive or restrict inheritance rights in cases of gross neglect of support obligations, was discussed, it was automatically discarded in the 20th National Assembly and is still pending in the 21st National Assembly.

This content was produced with the assistance of AI translation services.