To Solve the Problem; Comparative Study of Inheritance Act
Compared to their children, senior citizens who are left alone after a spouse passes away becomes unable to work and needs inherited property in order to suffice their basic needs. The majority of a married couple’s inheritance is the result of the couple’s combined efforts, which they have built over time by sticking together and cooperating with each other. Therefore, it is fair that the surviving spouse takes a larger portion of the inheritance than their children. However, the existing regulation of inheritance has two problems; (1) the more number of children, the less incremental amount inheritance share will the surviving spouse receive; (2) there are many cases, where despite that marriage periods are roughly the same yet, a surviving spouse takes less inherited property than a divorced spouse.. To solve the problems, legislation cases in Inheritance Acts of Korea, Japan and U.S.A. need to be compared, eventually calling for an amendment modeled after the American legislation.
I. The necessity of an amendment, a spouse’s share in inheritance
As the average life expectancy is now longer than the past, most children are already 30 years or older when their parents pass away. Unlike their children who have economic freedom, senior citizens who are left alone after the death of their spouse, and who have become unable to work need inherited properties for their elderly age. And these days, because most children do not want to take care of their old parents, inherited properties are very important means for the remaining spouse to make a living. Also, most parts of inheritance is the result of the couple’s life-long work that they built together and cooperated, such as by living as two-earner couple, and sharing house chores. So a surviving spouse should have the right to receive more portions of the inheritance than their children.
II. The issues on ongoing current regulations about inheritance; the reasons for an amendment
- In the existing regulation of inheritance, the more children a married couple has, the less inheritance is allocated to a surviving spouse.
Korean Civil Code Article 1009.1-2.(Legal Portions in Inheritance)
- If there exist two or more inheritors in the same rank, their shares of the inheritance shall be equally divided.
- The portions inherited to an inheritee’s spouse shall be increased by fifty percent over the inherited portion of his or her lineal descendant where he or she inherits jointly with his or her descendants, or fifty percent over the inherited portion of his or her lineal ascendant where he or she inherits jointly with his or her lineal ascendants.
According to this Article; in a case where a child and a spouse are coheirs, the child’s share of inheritance and the spouse’s share of inheritance should be one-half each; in a case where there are two children and a spouse as coheirs, the spouse’s share of inheritance should be 3/7; in a case where three children and a spouse are joint heirs, the spouse’s share of inheritance should be 1/3. In this way, an increasing number of children results in diminishing share for the spouse. Also, even though he or she bequeathed their spouse a fortune in his or her lifetime, it does not respect the decedent’s will by legally reserved portion system.
- There are many cases, where marriage periods are roughly the same yet, a surviving spouse takes less inherited property than a divorced spouse. According to the existing regulation about inheritance, a surviving spouse’s statutory share in inheritance is less than a division of property due to a divorce. In the recent civil case of an old couple who was married for more than 30 years, the court ruled that a claim on the division of property by divorce tends to be equal even if one side of the couple has been a full time housekeeper. The reason behind the equal division of property by divorce is that property during a marriage is regarded as community property. Therefore, taking a division of property by divorce is no longer a subject to the gift tax (Inheritance Tax and Gift Tax Act; Article 19, Inheritance Deduction for Surviving Spouse). The property is a share of the former spouse, because it is not intended to be a gift. If the property is the result of co-work between a married couple, it is fair to return an appropriate share to a remaining spouse, by not only divorce but also bereavement.
III. Legislation about Inheritance of Spouse in Japan and U.S.A.
In the case of the Japanese Civil Code, the right of statutory inheritance about a spouse’s share in inheritance is as follows;
-Statutory Share in Inheritance
Article 900 If there are two or more heirs of the same rank, their shares in inheritance shall be determined by the following items
(ⅰ) if a child and a spouse are heirs, the child’s share in inheritance and the spouse’s share in inheritance shall be one half each;
-Designation of Share in Inheritance by Will
Article 902 (1) Despite the provisions of the preceding two Articles, a decedent may by will determine the share in inheritance of joint heirs, or entrust a third party to determine the share ; provided that a decedent or a third party may not violate provisions relating to legally reserved portion.
(2) If a decedent determines, or has a third party determine, the share in inheritance of a single heir or several heirs amongst joint heirs, the share in inheritance of the other joint heir(s) shall be determined pursuant to the provisions of the preceding two Articles.
-Entitlement and Amount of Legally Reserved Portion
Article 1028 Heirs other than siblings shall receive, as legally reserved portion, an amount equivalent to the ratio prescribed in each of the following items in accordance with the divisions listed therein;
(ⅰ) in the case where only lineal ascendants are heirs, one third of the decedent’s property;
(ⅱ) in cases other than that referred to in the preceding item (ⅰ), one half of the decedent’s property.
In Japanese Civil Code, the more children a married couple has the less inheritance is allocated to a surviving spouse. It is same as Korean Civil Code(because Japanese Civil Code influenced Korean’s), so this study needs other kinds of Family law.
This study reviews the UCP (Uniform Probate Code) for finding out American Wills and Trusts. The UPC is a uniform act drafted by National Conference of Commissioners on Uniform State Laws (NCCUSL) governing inheritance and the decedents’ estates in the United States. The primary purposes of the act were to streamline the probate process and to standardize and modernize the various state laws governing wills, trusts, and intestacy. Although the UPC was intended for adoption by all 50 states, the original 1969 version of the code was adopted in its entirety by only sixteen states: Alaska, Arizona, Colorado, Florida, Hawaii, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Mexico, North Dakota, South Carolina, South Dakota, and Utah. Recently, the UPC has been intended for adoption by nineteen states; including New Jersey, Pennsylvania, Wisconsin. The remaining states have adopted various portions of the code in a piecemeal fashion.
According to the UPC, in case of Intestate Share, surviving spouse is the priority heir.
SECTION 2-102. SHARE OF SPOUSE. The intestate share of a decedent’s surviving
(1) the entire intestate estate if:
(A) no descendant or parent of the decedent survives the decedent; or
(B) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(2) the first [$300,000], plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;
(3) the first [$225,000], plus one-half of any balance of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
(4) the first [$150,000], plus one-half of any balance of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.
Meanwhile, the states which take Community Property System such as California, follow that the one-half of community property belonging to the decedent passes to the [surviving spouse] as the intestate share(UPC §2-102A⒝). In summary, American wills and trusts give the surviving spouse priority for inheritance property and they protect surviving spouse’s right more than that of a child.
The individual rights(including the private property system) are considered very important in American Wills and Trusts. A surviving spouse can legally claim statutory / elective forced share under state law. This system gives the right to a surviving spouse who was excluded from the deceased partner’s legacy. An elective share is the portion of a deceased person’s property that the surviving spouse is entitled to claim. It was intended to ensure the surviving spouse’s livelihood. In many states, the elective share is about 1/3 of a deceased spouse’s property. It may have become the property of their next marriage, or been inherited by his / her children from other relationships. This right started with the viewpoint that property acquired or earned by either spouse during marriage is marital property, and it is assured surviving spouse’s possession.
On the other hand, Korea and Japan are influenced by the Confucian culture and Patriarchism, so they place emphasis on blood ties than a surviving spouse’s right; especially, the rights of the wife. In a patriarchal society, the father who has all money and power willed his property to the eldest son. They believed primogeniture is the only way to protect the family’s heritage and bring honor to their family. Also, because the oldest son supported his elderly parents by filial duty, which is one of concepts of Confucianism, there was therefore no need to protect a surviving spouse’s property. But, as mentioned earlier, nowadays, most people think an individual’s right is more important than prosperity from blood ties, and there are no more children who serve their elderly father and mother.
IV. Amendments of the Korean inheritance Act; Preoccupancy portion of spouse according to contribution for making common properties
Taking the US legislation case as a springboard, the right approach to amend the Korean inheritance Act is to adapt the ‘Preoccupancy portion of spouse’. Against this opinion, some opposed this amendment desperately. There are sons and daughters who serve their parents and increase their parent’s property. They claim that if a surviving spouse married in the later years, the children who take care of their parent would take less of the inheritance. Also, a deceased father or mother left a legacy to their children and the surviving spouse, they want their inheritance to be used for only ‘this particular family’. However, a surviving spouse has to have a right to remarriage, if they wish to do so. No one can push them to stay alone for the rest of their life. In addition, the main reason for the revision is to promote fairness between the surviving spouse and the divorced spouse, as previously stated. According to the reason for the amendment, when a surviving spouse marries at one’s older age, the re-married husband or wife takes only a portion of the property that comes from co-working or participation with former spouse after re-marriage. Therefore, preoccupancy portion of the remaining spouse according to contribution for making common properties should be introduced.
 Ministry of Government Legislation, Korean civil code; Article 1009.1-2., http://www.moleg.go.kr/english/korLawEng?pstSeq=52674&rctPstCnt=3&searchCondition=AllButCsfCd&searchKeyword=civil (last visited July 2016)
 See.e.g., Jun Ju-hye, Case Analysis about a Division of Property, Study of Family Cases, (2007), at 305
 See.e.g., National Law Information Center, Inheritance Tax and Gift Tax Act; Article 19, http://www.law.go.kr/eng/engLsSc.do?menuId=1&query=+Inheritance+Tax+and+Gift+Tax+Act&x=31&y=18#liBgcolor0 (last visited July 2016)
 See, e.g., Sang-Hoon Kim, AMERICAN WILLS AND TRUSTS(2012), SECHANG PUBLISH, at 6-8
 Uniform Law Commission ,UNIFORM PROBATE CODE (1969) (Last Amended or Revised in 2010), http://www.uniformlaws.org/shared/docs/probate%20code/upc%202010.pdf (last visited July 2016)