SOUTH KOREA Law and Practice Contributed by: Woong-kyu Cho, Ji-eun Kim and Hyun-kyung Kim, Barun Law LLC
9. Planning for Non-Traditional Families 9.1 Children A child born out of wedlock does not automatically have statutory inheritance rights. However, if a legal parent–child relationship is established through acknowledgement by the father or mother, the child acquires the same inheritance rights as a child born during marriage. An adopted child is likewise treated as a child born during marriage and, if the adoption remains effec - tive until the adoptive parent’s death, inherits from the adoptive parent. However, the rules differ depending on the type of adoption. In a full adoption, the legal relationship with the biological parents is terminated, so the adopted child cannot inherit from them while the adoption remains effective. In an ordinary adop - tion, the legal relationship with the biological parents continues, allowing the child to inherit from both the adoptive and biological parents. The status of a posthumously conceived child remains unsettled. A child born within 200 days after marriage is presumed to have been born during marriage (Arti - cle 844 (2) of the Civil Act). However, opinions differ regarding a child conceived through artificial insemi - nation and born more than 300 days after the hus - band’s death. Although one court has recognised such a child as the deceased husband’s child, no court has ruled on whether the child also has inherit - ance rights, and academic opinion remains divided. The prevailing view is that inheritance rights should not be recognised because the child did not exist even as a foetus at the time of the father’s death, notwith - standing Article 860 of the Civil Act (retroactive effect of acknowledgement) and Article 1000 (3) (a foetus is deemed already born for succession purposes). Korean courts consistently hold that surrogacy agree - ments are void as contrary to good morals and pub - lic policy. For purposes of legal parentage, only the woman who gives birth is recognised as the mother, regardless of genetic parentage. Accordingly, the intended or genetic mother is not recognised as the child’s legal mother solely on that basis. Nevertheless, the courts recognise that a child born through surro - gacy may establish a legal parent–child relationship
with the genetic parents through adoption or other legally recognised means. 9.2 Same-Sex Marriage Under Korean law, marriage is established only upon registration, and a marriage registration that does not satisfy the legal requirements will not be accepted. The courts have held that marriage is “a union… based on affection between a man and a woman and intended for lifelong communal living” and have there - fore upheld the refusal to register marriages between persons of the same sex. Accordingly, same-sex mar - riages are not legally recognised in Korea. As a result, same-sex couples are not entitled to the rights and obligations afforded to legally married spouses, including statutory inheritance rights. Nor are they entitled to the legal protections available to de facto spouses. While Korean law generally recognises claims for property division and damages upon the dissolution of a de facto marriage (unless it is biga - mous), such claims are not recognised in the context of same-sex relationships. Accordingly, same-sex couples may regulate their property relations only through ordinary private con - tracts rather than rights arising from marriage. Such agreements are effective only between the parties and cannot generally be asserted against third parties. At present, Korean law provides little legal protection for same-sex couples. However, legislative propos - als, including an anti-discrimination bill that would permit marriage registration by same-sex couples, have attracted increasing public attention, although no such legislation has yet been enacted. 9.3 Cohabitation and Unmarried Couples Under Korean law, legal rights arising from mar - riage are recognised only upon marriage registration. Accordingly, regardless of whether the parties have lived together as spouses, a de facto spouse has no statutory inheritance rights. Likewise, a de facto rela - tionship does not qualify for tax benefits available to legally married spouses, including those relating to spousal gifts or family business succession.
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