Reserved portion claim after one year from death how short term prescription starts

The scariest word in legal portion cases is statute of limitations. In the consultation room, many regret saying, had I known earlier I would have claimed. The case introduced today is one where a legal portion restitution claim filed two years after death was dismissed at first instance for being out of time, then reversed on appeal. I often use this case to explain what hides behind the one-line rule, within one year from the day one became aware.

The deceased gifted real estate he owned to his nephew around March 2016 and passed away in April 2018. The childless spouse (plaintiff) remained the sole heir and brought a legal portion restitution claim against the nephew (defendant). Of note, the spouse had first filed a separate suit to cancel the transfer registration on the basis that there had been a title trust arrangement.

The Civil Code defines the scope of gifts included in calculating legal portion as follows.

• Gifts to co-heirs: all special benefits included without time limit
• Gifts to third parties: in principle, only gifts within one year of the commencement of inheritance are included

However, the case law recognizes one exception.

In this case, the deceased was already elderly at the time of the gift, had no notable income with repeated hospital expenses, and had even applied for basic livelihood support. Because the nephew was aware of these circumstances, both the trial and appellate courts recognized the knowledge of harm, and held that the gift two years earlier was included in the legal portion calculation.

Article 1117 of the Civil Code sets the short-term statute of limitations for a legal portion claim as one year from the day one became aware. The question is what counts as the day one became aware. The case law position is relatively strict.

• Simply being aware that a gift or bequest occurred is not enough
• One must have known that the gift infringed one own legal portion and that a restitution claim could be made

The first-instance judgment held that the real estate had been judged to be gifted to the defendant in the first instance of the earlier title-trust suit, and that around July 30, 2019, when that judgment was served, the plaintiff must be deemed to have known that a legal portion restitution claim was possible. It concluded that the present suit filed on March 5, 2021, was out of time.

The appellate court (Daejeon District Court) cited the same case law but reached a different conclusion on the specific facts. The core was that there were special circumstances making it understandable that the plaintiff had not exercised the legal portion restitution claim because she had believed the title-trust to be valid.

• The plaintiff had believed the title-trust would be recognized and pursued a separate suit
• If a title-trust is recognized, it is a trust restitution case rather than a gift, so legal portion itself does not arise
• Therefore, the awareness of legal portion infringement by gift became clear only at the time of the appellate and Supreme Court rulings

As a result, the day one became aware was pushed to around September 15, 2020, when the Supreme Court ruling in the title-trust suit was rendered. Since the present suit was filed within one year of that date, the court held that the statute had not run.

This case clarifies the following.

• Being aware of the gift does not automatically start the clock
• If the right-holder was seriously disputing another legal construction (e.g., title-trust), the running of the limitation may be delayed
• The statute defense is generally strong, but with organized facts there is enough room to dispute it

In the consultation room, when dealing with the statute of limitations I always check the following.

• What lawsuits or objections the right-holder filed during the deceased lifetime or after death
• The time at which the gift was objectively confirmed through registry review, tax notices, or the like
• The time at which legal, judicial scrivener, or tax accountant advice was received
• The time at which the gift was shared within the family through conversation or messages

When these clues are gathered, a picture emerges of where to set the day one became aware.

One axis of this case is the conversion to legal portion after the title-trust claim failed. Since the Real Estate Real Name Act took effect, title-trusts are generally void and the requirements to have validity recognized are strict. Therefore, the strategy of how to bundle the title-trust claim with the legal portion claim, and in what order, is a strategic area. It is worth considering a preliminary claim structure so that the failure of one claim does not block the other.

If the statute is about to expire, in addition to the main claim, provisional seizure and provisional injunction are generally reviewed together. These procedures also leave an objective record of the intent to exercise the right and have a significant asset-preservation effect at the later dispute stage.

Q. More than a year has passed since the deceased death — can I still claim legal portion?

A. Yes. The one-year short-term limitation is counted from the day one became aware of the gift and the infringement of legal portion, which is different from the date of death. However, there is also a 10-year long-term limitation, so prompt review is necessary.

Q. Are gifts to non-family members also subject to legal portion?

A. In principle, gifts more than one year before death are excluded, but if both parties knew it would harm the legal portion right-holder, gifts more than a year before are also covered.

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Legal portion is an area where the opportunity itself can disappear due to the short-term limitation. Do not assume more than a year since death means it is over; first organize what was known at what time. By combining objective materials, litigation records, and timing of advice received, the day one became aware is generally pushed later than one would think. As shown by the appellate court ruling in this case, accurate organization of the facts changes the result.

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Title-trust and gift can look similar from the outside, but generally differ on the following.

• Whose account the funds came from
• Who managed the real estate (received rent, paid taxes)
• Who actually made the decisions in the sale contract and registration process
• Whose property the family conversations actually attributed it to

Since the Real Estate Real Name Act took effect, title-trust is generally denied effect, and even criminal risk attaches to the trust agreement itself, so in practice, trust claims are increasingly difficult. Therefore, the construction that if the trust is recognized it is not a gift at all is attractive, but one must generally proceed on the premise that the recognition rate is low.

The reason the same precedent and same facts produced different conclusions is that the appellate court separately recognized the plaintiff seriously believed in the title-trust. The plaintiff in this case pursued the title-trust suit through first instance, second instance, and the Supreme Court. There were circumstances suggesting not a simple mistake but a contest carried out with conviction, and the court found there was a reasonable reason for the delay in the legal portion claim during that period.

• Provisional injunction against disposal of real estate: blocks transfer of registration and the establishment of mortgages
• Provisional seizure of receivables: preserves sales proceeds, rent, and similar funds in advance
• Regular monitoring of the registry: immediately catches signs of disposal of disputed assets

The closer the limitation, the more the speed of the main claim and the simultaneous progress of provisional measures generally make the difference in outcome.

In the consultation room, when organizing when the day one became aware was, I generally look first at the time of the first attorney consultation. Traces such as what facts were organized in that consultation, whether the consultation result was recorded by email, and whether additional materials were requested play a decisive role in later limitation disputes. The habit of summarizing the gist of the first conversation with an attorney by email generally saves cases.

The core of legal portion limitation disputes is typically when one clearly knew that exercise of the right was possible. Do not give up just because more than a year has passed since the death; first organize the circumstances that delayed the exercise of the right, then obtain a review from an attorney.

Byline · Author and reviewer: Attorney Yoon Ji-sang · Reviewed on: 2026-05-30

This article is provided as general legal information and does not guarantee the outcome of any individual case. Because conclusions can vary depending on the specific facts, please consult an attorney directly if you need legal advice tailored to your individual circumstances.