After the Constitutional Court Ruling on Legal Portion (Yuryubun): How Far Are Pending Cases Affected?
First published 2026-05-30 / Last reviewed 2026-05-30 This article is general legal information prepared based on the YouTube commentary above by attorney Yoon Jisang of Jonjae Law Firm.
On April 25, 2024, the Constitutional Court of Korea issued a major decision on the legal-portion system. Its core elements are a simple-unconstitutional ruling on legal portion for siblings, and constitutional non-conformity rulings on the absence of grounds for legal-portion forfeiture and on the failure to reflect contribution shares. Immediately after the decision, the question I have heard most often is "so how does this apply to my case?" This article walks through the structure of the decision, the trends in the separate opinions, and the impact on pending cases.
Let me first set out the legal-portion system
The legal-portion system was introduced on December 31, 1977, and has been operated without a single amendment until now. Its core purpose is to protect family solidarity and heirs' reliance interests. At the same time, it carries a powerful aspect of restricting the testator's right to freely dispose of property (property-right exercise). The balance between these two values is the starting point of the legal-portion debate.
The big picture of the decision
Let me first lay out the unanimous parts.
- Sibling legal portion (Civil Act Article 1112 Item 4): Simple unconstitutional. Loses effect from the date of the decision.
- Failure to provide grounds for legal-portion forfeiture (Civil Act Article 1112 Items 1–3): Constitutional non-conformity. Continues to apply until amendment by the legislature, no later than December 31, 2025.
- Failure to apply Civil Act Article 1008-2 (on contribution shares) by analogy to legal portion (Civil Act Article 1118): Constitutional non-conformity. Continues to apply until the same date.
The unanimous parts are the Court's holdings; there are also separate opinions. Separate opinions are not the Court's conclusion, but they carry significant weight for the future legislative amendment, so they are worth setting out together.
The separate opinions, in one table
| Separate opinion | Number of justices | Core thrust |
|---|---|---|
| Time limits on gifts | 4 | The current rule, which folds all gifts into the basic estate without a time limit, does not align with the Constitution. Comparative examples: Germany / Japan 10 years, Switzerland 5 years, Austria 2 years |
| Equal legal portion for spouses and lineal descendants | 2 | Considering the need to protect the spouse's livelihood and contributions to support and asset formation, setting the spouse's legal portion identical to that of lineal descendants is unconstitutional |
| Gifts for public-interest purposes or business succession folded into the basic estate | 2 | Against the testator's intent and the public interest; the in-kind restitution principle makes business succession itself difficult |
Considering the flow of Japan's inheritance-law amendment (1 year before commencement; 10 years for heirs) and the general parallels with Korean law, I believe Korea is likely to head toward a regime that limits the gift-inclusion period in the basic estate to 10 years. That said, legislation lies in the National Assembly's hands, so it cannot be stated as a certainty.
Simple unconstitutional vs. constitutional non-conformity — differences in effect
To understand this decision, one must first organize the types of decision effects.
- Simple unconstitutional: From that point, the legal provision loses effect. As a result, the provision is no longer applied.
- Limited unconstitutional: A holding that the provision is unconstitutional if not interpreted in a particular way. There is a line in which the Supreme Court does not recognize this type of effect, creating a friction issue between the two judicial branches.
- Constitutional non-conformity: The provision is unconstitutional, but a simple-unconstitutional ruling would cause large social disruption, so the Court separately specifies how the provision is to be applied until amendment. There are several forms: immediate suspension, suspension from a future date, continued application, etc.
In this decision, sibling legal portion is simple unconstitutional, while the legal-portion forfeiture grounds and contribution share are constitutional non-conformity (continued application).
A change in the type of decision changes the impact on the case. You must first identify which type of decision your case falls under before you can move to the next step.
How will pending cases flow?
This is the seat clients are most curious about. The flow of cases after the decision can be organized as follows.
| Case type | Outcome |
|---|---|
| Sibling legal portion, currently pending | Likely to be dismissed since simple unconstitutional has taken effect |
| Sibling legal portion, judgment already final | Not subject to retrial. The judgment's effect remains |
| Sibling legal portion, future cases | Sibling legal portion itself is no longer recognized |
| Legal-portion forfeiture / contribution share, currently pending | The retroactive effect of the constitutional non-conformity decision applies; the amended law may apply |
| Legal-portion forfeiture / contribution share, no case yet but death has occurred | Determined by the supplementary provisions of the amended law. If a retroactivity clause is included, it may apply |
The Supreme Court has held that for constitutional non-conformity decisions, retroactivity extends at least to the case in which the decision was rendered and to cases pending in court where the constitutionality of that legal provision is at issue. So for legal-portion forfeiture / contribution-share disputes currently pending in court, the safer course is to request the bench to await application of the amended law and apply it.
What form will legal-portion forfeiture grounds take in legislation?
The Constitutional Court referred to the general shape of legal-portion forfeiture grounds as follows.
- Cases such as long-term abandonment, mental or physical abuse of the deceased, and other unfilial conduct.
Two clear directions emerge here. First, the forfeiture grounds will be recognized at a minimum, not broadly. Second, matters that have actually resulted in criminal punishment (e.g., child abuse, assault on ascendants, battery against ascendants) will be relatively clear to prove, while matters without criminal punishment may be hard to prove on the facts.
How will contribution shares be reflected in legal portion?
The general interpretation has been that contribution shares are not reflected in the legal portion. In this decision, the Court stated as follows.
- Where an heir who supported the deceased over a long period or contributed to forming the inheritance property received some property from the deceased in return, folding that gift property into the legal-portion basic estate is unreasonable.
If this direction feeds into legislation, gifts or bequests to an heir whose substantial contribution is recognized may be excluded from the legal-portion calculation. That said, the exact shape will be fixed through future legislation and its application.
What this decision means — from counsel's view
I sort the implications into three points.
- A shift in the sibling-legal-portion area: Sibling legal portion should be viewed as effectively closed. However, already-final judgments remain in force, so timing management matters.
- Use of "continued application" constitutional non-conformity: Since legal-portion forfeiture / contribution-share constitutional non-conformity decisions are in the "continued application" form, for pending cases you must manage timing well up to application of the amended law.
- The legislative influence of separate opinions: Separate opinions are not the Court's conclusion, but they are likely to influence future legislation. Particular attention should be paid to potential changes in gift time limits, the spouse's legal portion, and public-interest / business-succession areas.
In consultations, the timing of facts is extremely important in legal-portion cases. Where the deceased's date of death, the date of the gift, and the timing of the family dispute sit changes how this decision affects you.
Frequently asked questions
Q. As a sibling, my legal-portion judgment is already final. What happens? A. It is not subject to retrial. Retroactivity of unconstitutional decisions is recognized only for laws relating to penal punishment, so this decision does not erase the effect of a final sibling-legal-portion judgment.
Q. How will sibling-legal-portion cases currently pending flow? A. Since we are now after a simple-unconstitutional decision, they are typically unlikely to be accepted. The decision directly affects the case.
Q. What materials do I need to litigate based on legal-portion forfeiture grounds? A. The exact shape will depend on the legislative amendment, but given the thrust of the Constitutional Court's comments, evidence supporting strong circumstances — long-term abandonment, mental or physical abuse — will be central. Criminal-punishment records, medical records, facility-admission records, and family testimony can be reviewed together.
How to apply this decision to your case
To apply the impact of this decision to your case, the safer order is as follows.
- Classify whether your case is a sibling-legal-portion case or a different legal-portion case.
- If the latter, classify whether your argument lies closer to legal-portion forfeiture grounds, contribution-share reflection, or gift time limits.
- Classify whether your case is currently pending in court, whether there is no case yet but the deceased has already passed, or whether it is a future case.
If you would like a short review of your case type and the next-step strategy, you can chat with us now.
Yoon Jisang / Jonjae Law Firm Family-law and inheritance counsel Last reviewed 2026-05-30
This article provides general legal information and does not substitute for legal advice on an individual matter. Results can vary depending on the case, so please consult an attorney for specific disputes.
