Reserved Portion Recent Case Law Top Five Highlights

At the recent legal portion case law seminar conducted by Jonjae Law Firm, 13 cases were addressed. I see this video not as a mere catalog of cases but as a map showing where legal portion practice is heading.

In this article I organize five strands among the 13 that I judge most decisive in practice. The facts of each case are detailed in the source materials, so here I focus on the conclusions and their meaning.

Supreme Court decision of July 15, 2021, Case No. 2016Da210498. The core conclusion is as follows.

The standard of judgment is the substantive perspective.

• If the positive property contained in the inheritance share exceeds the negative property and the value is positive
• The transfer of that inheritance share is evaluated as a gratuitous disposition reducing the deceased property
• Therefore it qualifies as a gift and is included as a special benefit

Supreme Court decision of August 19, 2021, Case No. 2017Da230338. The facts are as follows.

• For the estate of A, the agreement was that one of the children alone inherits real estate
• Later, when B (the spouse) passed away, the other children claimed legal portion
• The sole inheritor argued that what had already been received as sole inheritance at A death should be deducted as a special benefit

The Supreme Court held that the same applies where the content of the estate partition agreement is the same as a gratuitous transfer of one co-heir inheritance share to another co-heir. However, the key is that it applies to the case where one side took the entire property in 100 to 0 fashion.

This precedent has surprisingly few application cases in practice, found only when one watches not just the deceased but also the spouse later inheritance. It is also an area clients generally do not bring up voluntarily.

A Supreme Court 2021 decision clarifying the meaning of net inheritance share in the legal portion shortfall calculation formula.

Not the statutory inheritance share, but the specific inheritance share reflecting all special benefits is the standard. A point very frequently encountered in practical calculation, and one whose previously vague treatment has been clarified meaningfully.

Even if a trust agreement contains a clause that legal portion restitution shall be in value, that clause does not directly bind the legal portion right-holder.

• It is merely an agreement between trust contract parties
• The legal portion right-holder is not a party to that agreement, so the right-holder retains the choice of restitution method (in kind or in value)

As pre-inheritance design via trusts grows, the point that trust clauses alone cannot dictate the right-holder restitution claim carries very important implications.

The en banc decision settling a point where prior practice had been divided. When all children renounce inheritance, the spouse becomes the sole heir.

• Previously, succession by representation was recognized for grandchildren, frequently expanding disputes
• The en banc decision settling on the spouse as sole heir reduced cases where debt cascaded to lower-priority heirs
• Highly significant in the practice of organizing debt inheritance

Among the remaining decisions covered in the seminar, here are brief notes on those with significant practical impact.

• Whether third-party life insurance proceeds qualify as a special benefit (affirmative, with Civil Code Article 1114 applied)
• Standard for calculating the legal portion value of gifted property whose value was raised by the recipient at their expense
• Whether an heir who received a special benefit and then renounced inheritance is treated as a third party with Article 1114 applied (affirmative)
• Effect of registration where the form is post-death sale but the substance is a gift on death (valid)
• Effect of provisional seizure executed before inheritance renunciation (valid)
• Retroactive application to gifts made before the legal portion system took effect (negative)

Each precedent is set out in the source materials with facts and rulings. If a precedent resonates with your case, generally the difference in facts in that precedent is what divides the outcome.

• The scope of special benefits is trending broader
• The substance of inheritance share transfers and partition agreements is increasingly viewed as gratuitous disposition
• The right-holder rights are tending to be protected even against detour designs such as trusts and life insurance
• Vague parts of the calculation formula are being clarified step by step

Q. After my parents passing, the siblings agreed and one took the entire estate. Will this later affect that sibling legal portion claim? A. Where one party becomes sole holder of property as a result of the partition agreement, it may be evaluated in legal portion calculation in the same way as gratuitous transfer. Organization of the evidence is important.

Q. If a trust agreement states legal portion restitution shall be in value, must the right-holder always receive value-only restitution? A. No. It is merely an agreement between trust parties and does not restrict the right-holder choice of restitution method.

Q. In calculating legal portion shortfall, which items are most frequently disputed? A. The scope and valuation of special benefits, the calculation of specific inheritance share, and whether contribution share is reflected are the most frequently disputed. It helps to organize them in advance at the materials-collection stage.

If you need to review how the trend of these decisions may affect your case, Start a consultation by chat now can assist from organizing the facts.

Legal portion is an area that can be mistaken for math because the calculation formula is fixed. In reality, however, three evaluations decide the outcome — what is a special benefit, what is a gratuitous disposition, what is the specific inheritance share. Follow the trend of the case law and organize the materials of your case coherently, step by step. Start a consultation by chat now

Author: Attorney Yoon Ji-sang Date of review: 2026-05-30

This article organizes general family and inheritance legal information and is not legal advice on a specific case. Conclusions can vary depending on the facts and the structure of evidence, so please obtain a review through consultation for specific cases.