부양을 위한 상속제도로서의 유류분 再考 ―자녀의 상속권에 관한 미국 법리의 시사점―

Reconsideration on Elective Share System of Inheritance in terms of its Supportive Function: The U.S. Law on Children’s Rights of Inheritance and Its Implications for Korea

This study aims to explore propriety of Korean Elective Share System in terms of its supportive function for children as inheritors. The Korean Elective Share System was introduced by amendment of Korean Civil Act in 1977. At the heart of this amendment was a concept of family community property, and it focused on the process of liquidation by decedent estate and supportive function of elective shares. Today, however, this argument lacks persuasion, especially for children. If there is a claim for the return of elective share, it even could result in invalidating decedent’s earnest act inter vivos. This is a serious restriction on the freedom of disposal of property. Furthermore, it threatens to destabilize the legal status of the other party of gifts inter vivos. Meanwhile, according to the U.S. law in which disinheritance is recognized by the freedom of wills, only elective share for surviving spouse is specified in the law. They do not provide children’s rights to elective shares, or expectations for inheritance. In Louisiana, one and only state in America that follows the continental law system, they just provide eligibility criteria for forced heirs under Civil Code. It can be viewed as restriction on children’s rights to elective shares considered as necessity for supporting. In addition, under the ‘UPC’ (Uniform Probate Code) , when a decedent gives gifts inter vivos to an inheritor, it is ruled that the gifts are not included in the portion of inheritance for elective shares. The U.S. law has important implications for the Korean law. Korean Elective Share System under the Korean Civil Act should accept criticism for lagging behind social changes and start seeking for improvement. Much discussion is needed on elective share system across the spectrum. In the first place, measures to adjust or restrict on children’s right to elective shares must be made according to their needs for support.