유류분에 관한 헌법재판소 2024. 4. 25. 결정 및 그에 따른 2026년의 개선입법

The Korean Constitutional Court's Decision on Forced Share on April 25, 2024, and the Subsequent Legislative Reforms of 2026

On April 25, 2024, the Constitutional Court announced that while the forced share system itself is constitutional, some aspects of it are unconstitutional. This decision declared that Articles 1112, paragraphs 1 to 3, and 1118 of the Civil Code are all incompatible with the Constitution, while stating that these provisions would continue to apply until the legislature amends them by December 31, 2025. Accordingly, the National Assembly amended the Civil Code on September 20, 2024, and February 2026. The 2026 amendment was based on draft from the Ministry of Justice’s Special Committee on Family Law. However, only some of the revision proposals prepared by the committee were reflected in the legislation, while the rest were not. The Special Committee expanded the scope of those who lose inheritance rights to include all heirs, rather than limiting it to the direct ascendants of the decedent as in Article 1004-2 of the revised Civil Code of 2024. However, under the current Civil Code, if a person who is to inherit dies before the decedent or is disqualified from inheriting, the spouse of that person is allowed to inherit by representation(Article 1003, Paragraph 2). However, the Special Committee decided that if a person who would inherit is disqualified or loses their inheritance rights, the spouse’s inheritance by representation should not be recognized. The draft of the Special Committee excluded gifts from being included in the calculation of forced share and from the special benefit if the gifts were made as compensation for having specially supported the decedent through long-term cohabitation, nursing, or other means, or for having specially contributed to the maintenance or increase of the decedent’s property. However, this is limited to the extent corresponding to the contribution. The special committee decided that when calculating the forced share of an heir who claims the return of the forced share, his contributions should be taken into account. And the draft changed the method of returning the forced share to a monetary refund. The special committee decided that gifts to heirs would only be included in the assets for calculating the forced share if they were made within the 10 years prior to the commencement of inheritance. And the draft prescribed that donation made for public benefit as prescribed by presidential decree will not be included in the property base for calculating forced share. The special committee decided that a gift is not added to the forced share when it was made before the deceased married the current spouse. Lastly, the draft recognized the advance renunciation of inheritance before commencement of inheritance on the condition of the court’s permission. The Korean Assembly amended the Civil Code in February 2026. However, only parts of the Special Committee’s draft was accepted. The proposals regarding the forfeiture of inheritance rights and exclusion of the gift made for the special contribution of the receiver from the special gift were maintained. And the method of returning the forced share was changed to a monetary refund. The amended law has resolved all the issues pointed out by the Constitutional Court's decision. In addition, the amendment's change of the method of returning the forced share is expected to bring about an efficient resolution of disputes surrounding the forced share. However, there is still some necessity of changing the forced share law in the future.