This blog post examines why the statutory inheritance system demands a balance between the deceased’s freedom to dispose of their property and the protection of heirs’ livelihoods, focusing on historical changes and contemporary issues.
Under private property systems, individuals can freely dispose of their assets. However, if property is disposed of without restriction during one’s lifetime, it may threaten the livelihood of surviving family members. Therefore, to harmonize the freedom to dispose of property with the protection of heirs, it is necessary to reserve a minimum share for heirs. The system established for this purpose is the statutory share system.
In France, even after the Great Revolution, the social notion of broadly recognizing the freedom to dispose of property by will, as in the past, remained strongly entrenched. However, this extensive freedom sometimes led to the arbitrary rule of the patriarch, becoming a cause of family discord. Consequently, legislators during the revolutionary period adopted a relatively hostile stance toward testamentary freedom. They divided the deceased’s estate into a freely disposable portion and a reserved portion that must be set aside for heirs, minimizing the freely disposable portion.
The Napoleonic Civil Code enacted in 1804 recognized reserved portion rights only for lineal descendants and ascendants, excluding spouses and siblings. The proportion of the reserved portion varied according to the heir’s status and number. Dispositions made gratuitously during the decedent’s lifetime or by will were restricted: they could not exceed half of the estate if there was one child, or one-third if there were two children. Children who renounced their inheritance were excluded from the group of statutory heirs entitled to a reserved portion. However, they were still counted among the decedent’s children when calculating the reserved portion, ensuring that renunciation did not affect the free portion. The right to a reserved portion was understood as the decedent fulfilling their obligation to their family. The reserved portion system for lineal descendants, in particular, functioned as a mechanism to protect the livelihood of young heirs.
In 2006, significant changes were made to the statutory share system. As the disposition of the decedent’s assets during their lifetime tended to occur over extended periods due to aging, maintaining the method of returning the shortfall in the statutory share from the inheritance itself would have caused third parties to be unduly affected. Additionally, the timing of inheritance commencement had delayed, yet it became common for heirs to have already established their livelihoods. The increasing number of cases where family structures were reorganized due to divorce and remarriage also contributed to the background for these changes. Within this social context, the legislature permitted advance waiver of the reserved portion, abolished the reserved portion for lineal ascendants, and expanded the freedom of the decedent to dispose of their property. Children who renounce inheritance are excluded from the count of the decedent’s children when calculating the reserved share, so when renunciation occurs, the free portion increases. Furthermore, to protect third parties, the method of returning the reserved share was changed from returning the property itself to returning the equivalent monetary value of the shortfall.
South Korea’s statutory share system was established in 1977. The current Civil Code includes the decedent’s lineal descendants, spouse, lineal ascendants, and siblings within the category of statutory share beneficiaries, provided they have not renounced inheritance and have no grounds for disqualification from inheritance. Among these, the highest-priority heirs are recognized as statutory share beneficiaries. Lineal descendants are first priority, lineal ascendants are second priority, and siblings are third priority. The spouse is considered an heir of the same priority as lineal descendants and lineal ascendants, but has priority over siblings. Heirs recognized as statutory heirs are guaranteed a statutory share of their legal inheritance as their reserved portion. Among direct descendants, the legal inheritance is divided equally. Their reserved portion is half of the legal inheritance. After calculating the specific statutory share amount, if the actual inherited property received falls short of that amount, the heir may claim the return of the inheritance property itself, corresponding to the shortfall, from the recipient of the bequest or gift, within the limits of that shortfall.
Recently, the need to revise South Korea’s statutory share system has also been raised. At the time of its introduction, the prevailing practice was for the head of the family to monopolize the inheritance, so the need to guarantee the inheritance rights of other heirs was emphasized. In actual legal application, guaranteeing the statutory share for spouses and children held significant meaning. However, the family head system has now been abolished, and the practice of sole inheritance by the eldest son has virtually disappeared. In this context, the Supreme Court has held through precedent that since the reserved share system restricts the disposition of property according to the decedent’s free will under the principle of guaranteeing heirs’ inheritance shares, maintaining the scope of such restrictions to a minimum is desirable for more faithfully respecting the decedent’s intentions. This perspective reflects the changed family structures and property values in our society and serves as an important benchmark for exploring the future direction of the reserved share system.
