Solutions to Reduce Costs and Time in Division of Inherited Property [‘Curious Inheritance’ by Attorney Kim Tae-hyung, Former Chief Judge]

[Financial News] The author served as a judge at the Suwon District Court Seongnam Branch from 2012 to 2014 and at the Suwon Family Court from 2022 to 2024, handling adjudications on division of inherited property. From 2022, as the presiding judge of the First Family Division at Suwon Family Court, the author dealt with numerous cases involving the division of inherited property. Since 2024, as an attorney, the author has also handled many cases related to the division of inherited property and claims for return of legal reserve of inheritance. These cases, being disputes among family members, often take considerable time to resolve and are challenging for both judges and attorneys.

"I will spend all my assets while I’m alive. That way, my children won’t fight." This is a sentiment frequently heard among the older generation these days. Parents believe their responsibility ends with raising and educating their children, and they do not necessarily feel obliged to pass on any remaining assets. For those who have witnessed inheritance disputes up close, this perspective is not unfamiliar. When siblings who have been close all their lives turn against each other over their parents’ estate, the resulting rift can be deeper than anyone expects.

If an Agreement Is Reached, the Court Is Not Needed
In principle, heirs can decide among themselves how to divide the assets left behind after someone passes away. If all heirs agree on who will receive what and in what proportion, and proceed with registration, title transfers, and the settlement of financial assets based on that agreement, there is no need to go to court. However, problems arise the moment this agreement breaks down. One heir may claim a greater share for having cared for the parent, while another may argue that a sibling already received a significant gift during the parent’s lifetime, raising the issue of ‘special benefit.’ Some heirs may insist on receiving a specific property. If extramarital children, children from previous marriages, or new spouses (step-parents) are involved, the interests become even more complex and emotions run higher. In such cases, it becomes inevitable to file an adjudication on division of inherited property with the family court to seek a judicial decision.

‘Essential Requirement’ for Adjudication on Division of Inherited Property: Participation of All Heirs
So, against whom should an adjudication on division of inherited property be filed? For example, imagine a simple family where the father has passed away, and the surviving heirs are mother A, son B, and daughter C. According to the Civil Act of the Republic of Korea, the spouse receives a larger share than the children—in this case, the mother receives three-sevenths, and the son and daughter each receive two-sevenths. While these ratios are clear, disputes over special benefits or contributions can still arise, leading to a request for adjudication. The crucial principle is that all co-heirs must be included as parties to the proceedings. Any heir may be the claimant, but all heirs must be included as either claimants or respondents for the adjudication to proceed validly.

For example, B may file against A and C; A and B may jointly file against C; or A may designate both B and C as respondents. However, it is not permitted for B to file only against C, A only against B, or C only against A. The division of inherited property is not a dispute among select heirs but a procedure to settle the shares of all co-heirs at once. Even if mother A received a substantial gift during her lifetime and is not entitled to any further share, she cannot be excluded from the case as long as she is an heir. If a claim is filed excluding some heirs, the court will require the missing heirs to be added as parties, and failure to do so will result in dismissal of the claim. If a decision is made with some heirs missing, it is generally invalid. Therefore, accurately identifying all heirs is the starting point for adjudication on division of inherited property.

Which Court Should the Claim Be Filed With? The ‘Jurisdiction’ Strategy
Another common question is which court to file with. In principle, adjudications on division of inherited property must be filed with the family court that has jurisdiction over the respondent’s address (or the civil panel of the district court if there is no family court in the area). If there are multiple respondents, the claimant can choose the court based on any one of their addresses. For example, if A lives in Seoul, B in Busan, and C in Suwon, and B wants to file against A and C, the claim should be filed with either the Seoul Family Court (for A’s address) or the Suwon Family Court (for C’s address), not in Busan. Conversely, if A and C have already reached an agreement and only B objects, A and C can jointly file against B in the Busan Family Court, which has jurisdiction over B’s address.
If A wishes to file in Seoul for convenience, filing alone in Seoul would not be proper jurisdiction. However, when there are multiple respondents, the options may vary depending on the composition. For instance, if A wants the case heard in Suwon, A can be the sole claimant and designate both B and C as respondents, filing in the Suwon Family Court based on C’s address. Ultimately, how the claimants and respondents are designated is a key strategy in determining which court will hear the case.

What About Heirs Who Renounce, Fetuses, and De Facto or Bigamous Spouses?
Not all co-heirs must always be included as parties. A notable exception is an heir who has renounced inheritance. Once inheritance is renounced, the effect is retroactive to the time of commencement, so that person is considered never to have been an heir. Therefore, a renouncing heir does not need to be included as a claimant or respondent. There is a three-month deliberation period from the time an heir becomes aware of the commencement of inheritance to decide whether to accept, accept with limitation, or renounce. If any co-heir is still within this period, it is prudent in practice to wait until their decision is finalized before filing for adjudication.
A fetus, not yet born, generally cannot be a party to an adjudication on division of inherited property. However, if birth is imminent, unless there are urgent circumstances, it is reasonable to suspend proceedings until after birth and then include the child as a co-heir.
The issue of spouses is also important. A de facto spouse may have a right to claim division of property, but is not legally an heir and thus cannot be a party to an adjudication on division of inherited property. On the other hand, a so-called ‘bigamous spouse’—someone who has registered marriage with a person already legally married—is, in form, a legal spouse and is treated as an heir in the division process. Even if the bigamy is later annulled, the annulment is not retroactive, so any property acquired through the procedure is not subject to restitution as unjust enrichment.

How to Minimize Disputes
Once adjudication on division of inherited property begins, it inevitably involves significant time, costs, and emotional strain among family members. To minimize these, it is important to accurately identify all heirs (including marital status, divorce, extramarital children, children from previous marriages, fetuses, bigamous relationships, etc.), check for any renunciations and deliberation periods, properly designate the parties, and strategically select the court with jurisdiction.
Making proper use of wills and gifts during one’s lifetime can also help reduce the potential for disputes. However, if inheritance has already commenced and agreement is difficult, it is essential to fully understand and prepare for the legal procedures and requirements so that the remaining family members can resolve property issues with minimal distress.

Kim Tae-hyung, partner attorney at Barun Law LLC | Kim Tae-hyung is an expert in family and inheritance law. Appointed as a judge in 2007, he concluded his 17-year judicial career in 2024 as chief judge of Suwon Family Court before joining Barun Law. During his judicial tenure, he handled family, inheritance, and juvenile trial cases for a total of eight years starting in 2012. In particular, during the last five years (2019–2024) at Suwon Family Court, he served as a specialist judge in family and juvenile matters, handling numerous related cases and building expertise in this field. He is also the author of the bestseller "Inheritance, Divorce, Juvenile Trials, and the Court as Explained by a Chief Judge" (Pakyoungsa, 2023).


jjw@fnnews.com Jung Ji-woo Reporter