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Disclaimer of Inheritance as Fraudulent Transfer

There are cases where insolvent heirs disclaim inheritances by which they can pay their debts. May these diclaimers be avoided as fraudulent transfers? Recently, the Korean Supreme Court ruled that such a disclaimer could not constitute a fraudulent transfer. There are two grounds supporting this position. Firstly, the disclamer of inheritance has a restrospective effect, that is, the disclaimer should be treated as if she/he was not a heir from the beginning. So the disclaimer cannot be a transfer in legal sense. Secondly, the decision to disclaim is a personal resolve that should be respected by law. However, these reasonings are not persuasive. The restropective effect of the disclaimer (so-called relation-back doctrine) is a mere legal fiction. It cannot be denied that the inheritance belongs to the disclaimant at the time of deceased’s death. And the autonomy of the disclaimant cannot override the legitimate interests of the creditor. Especially, article 386 of the Korean Bankruptcy Code prescribes that the disclaimer of inheritance which preceded the bankruptcy commencement decision has only the effect of the acceptance with reservation, if the disclamier was made after the bankruptcy commencement decision. This provision implies that the disclaimer of inheritance before the bankruptcy commencement decision should not be sustained, if it were fraudulent. So, if the disclaimer of inheritance which harms the legitimate interests of the creditor should be avoided as a fraudulent transfer by the creditor or trustee.