• 2023.04.11
  • Others

Spousal residence

Establishment of spousal residence (Civil Code Article 1028)

Effective April 1, 2020, a new inheritance law will allow for spousal residency. Until now, in order for the surviving spouse to continue to live in the building in which he/she had previously resided after the decedent’s death, he/she had to go through the process of dividing the estate and acquire ownership of the building. However, if the inheritance other than the home is small, the spouse inherits the property corresponding to the inheritance share from the home, leaving no other deposits or savings. In order to solve this problem, even if the spouse does not acquire ownership of the residential building, a right of use called spousal residence is granted to the decedent’s building in which the spouse resided at the time of inheritance, allowing the spouse to use the building even after the end of the partition of the estate. The spouse will be able to acquire the spousal residence for life or for a certain period of time in a legacy division agreement, a legacy division mediation, or a legacy division trial. The spousal residence right must be registered.

Spousal short-term residence (Civil Code Article 1037)

A spousal short-term residence right is also granted, which allows the spouse to reside in the residence building free of charge for a short period of time from the time of the commencement of inheritance until the end of the division of the estate, if the residence was occupied free of charge at the time of the commencement of inheritance. The spousal residence right is always protected for at least six months, even if the decedent’s residence building was bequeathed or if the decedent expressed a contrary intention.

Presumption of declaration of intention to exempt from taking back (Civil Code Article 903, Paragraph 4)

The Inheritance Law has been amended to add a provision that states that when a decedent, one of a married couple who has been married for 20 years or more, bequeaths or donates a residential building or site to his or her spouse, it is presumed that he or she has declared his or her intention to exempt the property from reversion. If there is a special benefit, it is called “reversion of special benefit,” and this is the principle under the Civil Code. On the other hand, there is an exception to the carry-back, and it is stipulated that if the decedent “expresses a different intention, that intention shall be followed. However, if the decedent did not declare his/her intention to waive the reversion, the gift will be reversed in the estate as a gift during his/her lifetime, and the purpose of the gift made by the decedent to his/her spouse during his/her lifetime will be reflected in the result of the division of the estate. The purpose of the gift made by the decedent to his/her spouse will not be reflected in the result of the division of the estate. Therefore, Article 903(4) of the Civil Code was newly established, which stipulates that if one spouse who has been married for 20 years or more bequeaths or donates residential real estate to the other spouse, the decedent is presumed to have expressed his/her intention to exempt the bequest or donation from reversion. In other words, in principle, the decedent is not required to be treated as having received a special benefit.