Inheritance Litigation Basics Seminar

When an inheritance dispute comes in, it usually sorts into three threads.

• Estate division adjudication actions
• Legal portion (yuryubun) restitution actions
• Will and trust-related disputes

After serving as a presiding judge in family court before moving into private practice, I have handled these three threads more than any others. In this article I lay out the typical structure of each and the points practitioners most often miss.

In other words, a claim that another heir took 99 out of 100 and I want to take back 99 is not an estate division — it is a legal-portion case. Estate division tends to proceed in family court, the legal portion in ordinary civil court. The two are typically reviewed together, but a clear understanding that they start from different premises is the basis of case strategy.

• It proceeds either by agreement or by adjudication, and agreement requires the consent of all heirs
• If even one heir refuses, the matter must go to adjudication
• An heir who has renounced inheritance is excluded from heir status and drops out of the agreement set

Judgments typically follow this order.

• Identify the heirs and their statutory shares (watch for omitted substitute heirs)
• Identify the estate subject to division (real estate, shares, vehicles, claims and debts)
• Decide on contribution and special benefit
• Decide on the division method (monetary, in-kind, common ownership, etc.)

Inheritance tax is a state collection procedure separate from the estate-division adjudication. The two have different timelines and typically need to be managed separately.

Most estate-division disputes that do not settle by agreement come down to contribution and special benefit.

• Contribution: a claim that this heir did something particularly meaningful for the deceased — typically recognized very strictly
• Special benefit: assets received in advance by a particular heir through inter-vivos gift, will, etc.

Where there is a special benefit, the other heirs share grows accordingly. The core attorney work is therefore building an evidentiary picture of who received what, when. Seoul Family Court has relatively clear standards for evidence applications, but other courts often require detailed and lengthy reasons in the application to get it through.

A spouse is typically treated differently from other heirs on contribution and special benefit. This reflects the criticism that the divorcing spouse takes half but the surviving spouse, having stayed, ends up with much less. In long marriages where the estate is largely in the deceased name, the spouse can actively assert:

• Exclusion of certain assets from special benefit
• A finding of contribution
• Specific circumstances showing cooperation in forming the assets

The legal portion proceeds as an ordinary civil matter, and the following matter.

• One-year short statute of limitations from the day of knowledge — typically the complaint is filed within one year of death to avoid the limit
• Keep the complaint concise — the prayer for relief will be revised as evidence accumulates anyway
• Always state that this is a partial claim — without that note, limitations are tolled only up to the claimed amount

The Constitutional Court has invalidated the legal portion for siblings. The current legal-portion claimants are therefore limited to lineal descendants, lineal ascendants, and the spouse.

How a special benefit is treated in a legal-portion case turns on who received the gift.

• Gifts to an heir: typically included in the base estate without time limit
• Gifts to a third party: in principle, only gifts made within one year before death are included

A third-party gift can still be included even if outside the one-year window if all of the following are proved.

• Both parties knew at the time of the gift that the legal portion would be infringed
• The gifted property exceeded the remaining estate
• It was foreseeable that the testator estate would not grow further in the future

Whether a gift to a grandchild or daughter-in-law is treated as a gift to an heir comes up often. The practice tends to run as follows.

• In estate-division cases: such gifts are frequently treated as gifts to heirs
• In legal-portion cases: the same doctrine applies, but the judgment is typically stricter

Legal-portion restitution defaults to in-kind. If real estate is still held, the default is restitution of a share of the property. Monetary restitution is exceptional, used when in-kind restitution is impossible or when both sides prefer money. The valuation reference point for a special benefit is typically the time of the opening of succession. A property received for 50,000 won that has risen to 100 million can become a sharply contested valuation issue and typically has a major impact on argument strategy.

Handwritten wills face hurdles in preventing forgery and securing validity, and typically a lawsuit is needed if other heirs disagree before the will can be registered. Notarized wills, by contrast, can typically be enforced and registered directly, sharply reducing disputes.

• Handwritten will: enforcement typically needs heir cooperation or a lawsuit
• Notarized will: enforcement is relatively straightforward

I strongly recommend notarization to clients writing a will. If testamentary capacity may be contested, retaining the medical records and video material from the time the will was written is typically safer.

Q. How is testamentary capacity contested? A. Capacity is typically assessed through a court appraisal based on the medical records of an elderly client. Scores such as K-MMSE may serve as references, but results can shift with timing and provider, so the consistency of medical records is critical.

Q. Anything to watch in an estate-division agreement? A. In some lower-court rulings, signing a division agreement while broadly aware of the gifts has been treated as a waiver of the legal portion claim. Including language such as the legal portion claim is not waived in the agreement is typically the safer course.

Q. Should estate division or legal portion come first? A. Estate division typically needs to be settled first to provide the base for calculating the legal portion. But to avoid the legal-portion limitation period, filing both around the same time and feeding the result of one into the other is a common pattern.

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Inheritance litigation is in the end an evidence contest, and the starting point of evidence is the record of who received what and when. If a dispute looks likely inside the family, organizing materials while the testator is still living is typically the most helpful step.

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Written by: attorney Yoon Ji-sang · Reviewed 2026-05-30

Disclaimer: This article summarizes general principles of inheritance litigation as study material and is not legal advice for a specific case. Facts and conclusions vary by case, so for a specific matter please consult an attorney directly.