[Chatting] "Worried that ex-marriage children will be asked to inherit when her husband dies"...The only apartment property, where?

□ DEAR READER: I married my husband 20 years ago. At the time of marriage, my husband had been divorced once and had two children. I don't know if it's a good thing for me, but... He didn't look for his ex-wife's children, and they didn't look for him. There are no children between us. My husband was not the only one who lived a good life because he worked, but looking back, he lived happily for 20 years. My husband and I have been in bad health for a few years now. My husband had cancer and my knee was not good, so I had difficulty moving. The husband was worried that his children, who had lost their relationship even though he was sick, would suddenly come. My husband and I have only one small apartment where we have lived together. If he dies first, I have to continue living in this apartment. However, if my husband's children show up and claim the right to inherit, my retirement life can become very unstable. My husband often discussed this with his acquaintances around him. My husband's friend advised me to give the apartment to my wife in advance before the inheritance, but to deal with it in the form of a sale, not a gift. That way, my children will not be able to claim any rights to this apartment. My husband is trying to transfer his ownership by taking this advice and selling it to me. Do you think we're doing a good job?

◆ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): In the event of the death of a husband, can ex-married children who have lost their relationship claim the right to inherit?

◇ Lawyer Lee Jun-heon (hereinafter referred to as Lee Jun-heon): Yes. Even if your husband and his ex-wedding children have been out of touch for a long time, as in this case, the inheritance right is recognized as long as it is your husband's children.

◆ Cho In-seop: Is inheritance recognized even if the husband gives the apartment to you?

◇ Lee Jun-heon: If your husband gives you an apartment while you are alive, the apartment will not be an inherited property, but if your children request you to return the legal portion of the property, the donated apartment will be reflected in the calculation of your children's legal portion. And in the case of the return of the legal reserve, it is a principle to return the original, that is, the gifted property itself, so it is highly likely to return the legal reserve by registering the transfer of the apartment shares to the children.

◆ Jo In-seop: What kind of problems can occur if the oil portion is returned?

◇ Lee Jun-heon: If you have to return the legal reserve to your husband's ex-wedding children, they will each have a one-seventh stake in the apartment. If the spouse and children become co-inheritors, 50% will be added, and the children's share of the inheritance is one-half, so if you calculate this, you will share the apartment with 5/7 and 2 children with 1/7. Then you will have a majority stake, so it may not be a problem to live in the apartment itself as an act of managing the common property, but if your children claim the return of unfair gains equivalent to their share in return for your sole use, you may have to pay them unfair gains. And if you have to dispose of the apartment, the disposal of the common property must be agreed upon by another shareholder, so if your children don't agree, there may be a situation where you can't dispose of the apartment alone.

◆ Cho In-seop: So if I give it in the form of a sale, can I avoid the request for the return of the legal reserve of my husband's children?

◇ Lee Jun-heon: I don't know if we actually exchanged the sale price, but in this story, even if it was donated in the form of a sale, it would be difficult to avoid returning the legal reserve. There are more cases of giving gifts in the form of trading to avoid returning the legal reserve of inheritance than expected. Looking at the actual judgments in these cases, it seems to be judged whether it is a gift or a sale based on whether the person who received the gift has the financial ability to acquire the property and whether he or she has a job. For example, if a person who received a gift in the form of a sale was still a minor, the gift, not a sale, was recognized on the grounds that he did not have a job and had no economic ability, and it was ruled that the legal reserve of inheritance should be returned. And even if the person who received the gift is an adult, it is judged whether the contract between the giver and the recipient is a gift or a sale, taking into account the period of economic activity or the degree of property. In this case, you said that you did not engage in economic activities separately, and you do not seem to have much property, so even if it is a form of sale, it is recognized as a gift, so it will be difficult to avoid returning the legal reserve.

◆ Cho In-seop: Can't you claim your contribution to the return of the legal reserve when you have been with your husband for 20 years and your children haven't contacted him?

◇ Lee Jun-heon: Our civil law recognizes contributions to inheritance, but does not consider contributions in determining the legal reserve of inheritance. In May this year, the Constitutional Court ruled that the current rules of inheritance, which do not recognize the heir's contribution, are not in accordance with the Constitution, saying that if the heir is subject to the return of the heir's contribution, the intention of the heir to compensate the heir is denied. With this decision, the contribution was recognized in the legal portion. However, in order to prevent legal confusion caused by sudden changes, a provisional constitutional inconsistency decision was made to apply the current civil law provisions until December 31, 2025, so unfortunately, it will be difficult for you to claim the contribution in the return of the legal portion of the legal portion.

◆ Jo In-seop: Now, to summarize what we've done so far... If your husband dies, your ex-married children can claim the right to inherit. If the husband gives the apartment to you, it is not an inherited property, but it reflects the donated apartment when the children request the return of the legal reserve. It is highly likely that the return of the legal reserve will be made through registration of the transfer of shares in the apartment. You have a majority stake, so there's no problem with your apartment residence itself, but your children can claim a return of unfair advantage for their sole use. In addition, it may be difficult to dispose of the apartment alone because the consent of the children is required. Even if a gift is given in the form of a sale, it is difficult to avoid returning the legal portion of the oil, and if the person in question did not engage in economic activities, it will not be recognized as a sale, so it is likely to be required to return the legal portion of the oil. Currently, the civil law does not recognize contributions from legal reserve. The recent decision by the Constitutional Court has made it possible that contributions will be recognized, but the current law will be applied until 2025. You've been with lawyer Lee Jun-hun.

◇ 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.