[Chatting] My stepmother came after my father's death."Let's divide the property by 6:4". Why?

□ Broadcast date and time: October 23, 2024 (Wednesday)
□ Host: Attorney Jo In-seop
□ Cast: Attorney Cho Yoon-yong

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information.

□ DEAR TORN: When I was 10, my parents divorced. I lived with my mother and grew up without my father's financial support. I met my father regularly, but he never gave me an allowance. I've never even received tuition. I once asked for college tuition, but he refused right away. My father remarried, and he was generous with financial support to my stepmother and her son. According to the news, he gave millions of won each month to his stepmother and 200 million won to his son as marriage funds. Not too long ago... My father died three months after being diagnosed with terminal cancer. My stepmother called me after the funeral. It was because of my father's inheritance of property, but since there are two heirs, my stepmother herself and me, he suggested dividing it into 6:4 according to the legal inheritance. As soon as I finished my father's funeral, I was embarrassed to hear about the inherited property first. And as far as I know, my stepmother and son have already received significant wealth, I wondered if it was appropriate to divide the remaining wealth 6:4. When I didn't answer immediately, my stepmother urged me to follow her words quickly, saying that she has only had a hard time helping her father's business and has done all the nursing alone. It was an unexpected reaction. At this time, I want to take a closer look at the division of inherited property, but it's just too difficult. What kind of things should I look at?

◇ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): < Attorney Cho In-seop's Counseling Office> Today is an inheritance issue. I think you grew up in a divorced family. But I don't think your father paid for child support?

◆ Lawyer Cho Yoon-yong (hereinafter referred to as Cho Yoon-yong): I can't believe you asked for college tuition, but you were rejected. I think you must have been very sad.

◇ Cho In-seop: My father paid my stepmother a considerable amount of money and bought her real estate while she was alive, but can't we reflect this in the division of inherited property?

◆ Cho Yoon-yong: Article 1008 of the Civil Code provides for special profits, and if there is a special beneficiary who received a gift or bequest of property from the heir, if there is a property that has been gifted during his/her lifetime for fairness among the joint heirs, it is considered to have received the inheritance in advance and is taken into account when calculating the specific inheritance. However, the gift of property does not necessarily mean that it can be recognized as a special profit, but it is decided whether it is a special profit by considering the assets, income, standard of living, and family circumstances of the heir. In the case of the story, the stepmother remarried with her father and then formed a family as a spouse and lived together. In this way, if the heir forms a family community as the spouse of the heir and lives cooperatively, even if there was a gift during life, it may be considered to contain meaning such as compensation or evaluation of the spouse's contribution or effort, liquidation of actual marital joint property, and fulfillment of the obligation to support the rest of the spouse's life, so it may not be a special profit depending on the purpose or value. For example, it will be difficult to include your father's payment of living expenses to your stepmother in the special income as an advance payment of inheritance, and it will be necessary to take a closer look at the circumstances, purpose, and property size of the post-war period.   

◇ Cho In-seop: Can your stepmother be recognized for her contribution to helping and supporting her father's business for a decade? 

◆ Cho Yoon-yong: In the Korean Civil Code, there is a contribution system that recognizes the inheritance of more than the legal inheritance in consideration of the calculation of the inheritance if the heir is specially supported or contributed to the maintenance or increase of the heir's property among joint heirs. In order for these contributions to be recognized, special circumstances such as supporting the heir to a more special level than the general level of support, special contributions to the heir's property growth, such as giving up daily life, focusing on caring and caring for the heir, paying the full cost of supporting the heir, or adding significant funds to acquire and maintain the heir's property must be asserted and proved. However, as spouses, couples are obligated to live together, support, and cooperate. In the story, the stepmother was a full-time housewife during her marriage to her father, mainly in charge of housework and helped her father's business, but it seems that she cooperated as a spouse rather than a leading business operation. In addition, caring for a father diagnosed with terminal cancer for about three months does not seem to have exceeded the expectation of an ordinary spouse, so it is difficult to recognize the contribution of the special contribution to the stepmother from the content of the story alone. 

◇ Jo In-seop: Is it possible for the stepmother's son to claim the return of the legal reserve of inheritance for the marriage fund supported by his father and include it in the inherited property? 

◆ Cho Yoon-yong: First of all, in the case of a claim for the return of the legal reserve of inheritance, the stepmother's ex-marriage child does not correspond to the heir to the father's inherited property. A gift to a third party other than an heir may be requested to return the legal portion of the heir only within one year from the date of death of the heir. Therefore, even if the stepmother's son received 200 million won worth of marriage funds from his father, it was already done three years ago and cannot be returned through a claim for the return of the legal reserve. On the other hand, even in the case of the division of inherited property, the money donated by the stepmother's son itself cannot be included in the father's inherited property. However, in the case of special profits mentioned above, in principle, only if the heir is gifted, but if it is recognized that it is not different from the gift from the heir to the heir, such as a gift to the heir's direct descendant, spouse, direct ancestor, etc., even a gift to a third party other than the heir can be considered as the heir's special income and reflected in the division of inherited property. In the case of the story, even if the father donated 200 million won to the spouse's ex-marriage child, that is, the stepmother's son, it may be seen as a gift to the stepmother, so it can be argued that it should be reflected in the division of inherited property as a special income for the stepmother. 

◇ Jo In-seop: After the divorce, your mother received no child support at all while receiving the child support, but is it not possible to claim past child support against her stepmother, who is the heir of the deceased? 

◆ Cho Yoon-yong: First of all, the obligation to pay child support in the past is an obligation that arises from the status of a parent of a minor child, so it is a personal obligation imposed only on a specific individual of the party with such status. Since this personal obligation is denied inheritance, if past child support has already been established through consultation or trial with the parties, the bond or debt can be converted into full property rights and inherited, but it is not allowed to claim past child support against the stepmother, who is the heir of the father who died without anything yet set. However, regarding the extinctive prescription of the right to claim child support in the past, the Supreme Court changed the precedent to the position that the extinctive prescription will not proceed until specific claims are made by agreement between the parties or by the family court. Therefore, even if your father is still alive, it seems that 10 years have passed since you became an adult in your mid-30s, so it will be difficult to claim past child support due to the completion of the extinctive prescription. 

◇ Jo In-seop: Now, to summarize what we've done so far... It is difficult for the father's living expenses paid to his stepmother to be included as an advance payment of the inheritance, and the detailed process and purpose of the officetel purchase should be reviewed. Even if the stepmother assisted and cared for her father, it would be difficult to be recognized as a special contribution because it is a general spouse's duty. Since the stepmother's son is not the heir to the father's inherited property, it is impossible to claim the return of the 200 million won in the marriage fund. However, if it is considered a gift to the stepmother, it can be reflected in the division of inherited property as the stepmother's special income. Because the obligation to pay child support is a personal obligation imposed only on a particular individual, your mother will not be able to claim child support from her stepmother in the past. So far, I've been with lawyer Cho Yoon-yong. 

◆ Cho Yoon-yong: Thank you.

◇ Cho In-seop: You can listen to <Attorney Cho In-seop's Counseling Office> again on YouTube. If you have any questions or suggestions, please comment.