Managing Attorney Yoon Ji-sang | Hankyung Law&Biz Law Street Column

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"I worry that the other spouse may harm me" — why you should prepare a will in advance

In his column, Managing Attorney Yoon Ji-sang examines what happens when one party dies during a divorce lawsuit. For clients who worry that the other party may harm them, there is no need to be concerned because the disqualifying causes for inheritance (Civil Act Article 1004) apply, so the offender will not receive a single penny of the estate. However, apart from that, it is not uncommon in practice for a party in a divorce or inheritance lawsuit to die of natural causes or illness. In preparation for such situations, Managing Attorney Yoon recommends that clients who are in litigation make a will in advance. Without a will, the case may unfold in a direction the person never expected.

When divorce proceedings end, the property division claim also extinguishes

According to Managing Attorney Yoon Ji-sang's column, if one party dies during a divorce lawsuit, the divorce case and all related claims premised on it — such as property division, designation of parental authority, and visitation requests — all come to an end. Because the divorce has not been finalized, the other party remains the legal spouse and therefore an heir, and if there are children, they inherit as well. In particular, if there are minor children, the opponent in the divorce case may become the children's legal representative and obtain authority to dispose of even the children's share of the inherited property, creating the worst possible situation. To prepare for this, it is necessary to make advance estate plans through methods such as a handwritten will, notarized will, or testamentary trust.

Property division 50% vs. statutory share — which is more favorable?

Managing Attorney Yoon Ji-sang explains with a real example. In the case of A, who filed for divorce after enduring a marriage of more than 20 years due to her husband's affair, the property subject to division alone exceeded 5 billion won, but the husband suddenly died of a myocardial infarction. When the divorce case ended, the property division claim also disappeared, and A remained an heir as the legal spouse. However, this is not always a favorable outcome. Property division may be recognized at more than 50% depending on the degree of contribution, but the statutory inheritance share can be greatly reduced depending on the number of children. In particular, if the husband has children from a previous marriage, the inheritance share becomes much smaller than expected, and there are not a few cases where those children from the previous marriage actively begin inheritance disputes.

Renunciation of inheritance / limited acceptance — 3 months is the key

Conversely, if the husband's debts exceed his assets, the situation becomes even more urgent. You must apply to the court for renunciation of inheritance or limited acceptance within three months from the day you learned of the commencement of the inheritance. If, because you were in a divorce lawsuit, you were unable to properly understand the other party's financial situation, missing this deadline could lead to the worst-case scenario of unexpectedly taking on debts. Also, if the husband gifted or disposed of assets to a third party shortly before death, you may consider filing a claim for the return of the legally reserved portion, and if you had suspected that the spouse was hiding assets during the divorce lawsuit, there may still be room to pursue the matter legally even after death.

Even when the lawsuit ends, legal relationships do not easily end

Managing Attorney Yoon Ji-sang concludes the column as follows. If a spouse dies during a divorce lawsuit, the issue shifts from divorce to inheritance. Which path is more advantageous depends on the composition of assets, the status of the heirs, and whether there are debts, and the time available to make that determination is shorter than one might think. The more emotionally chaotic the period, the more quickly legal judgments must be made. Even when the lawsuit ends, legal relationships never end easily.

The "Family Law Unboxed" series is regularly serialized in Hankyung Law&Biz Law Street by The Korea Economic Daily. Attorneys Yoon Ji-sang and Noh Jong-eon, co-managing partners of the law firm Jonjae, take turns explaining key issues in divorce and inheritance law based on their practical experience.