신탁을 통한 재산승계와 유류분반환청구권

초록

The main characteristics of Korean inheritance law share a lot in common with the inheritance law of civil law countries. Accordingly, statutory succession has been playing as the default rule in Korea. With the rapid growth of Korean economy, however, people searched for a better way, instead of the statutory succession or testamentary gifts, to distribute their assets at their death reflecting their intentions. The social demand for a new regime of inheritance has instigated discussions in academic circles for new mechanisms which can better reflect the decedent’s intentions. Along with such social background, succession by trusts in common law countries has gathered much attention because of its flexibility in structuring estate planning. As a result, the Trust Act of Korea was substantially amended, effective as of July 26, 2012, to recognize trusts as will substitutes and trusts with successive beneficiaries. Succession by trusts makes estate planning over multi-generations possible and creates a flexible succession structure: the trustor can determine (i) how much and when the beneficiaries receive from the trust as well as (ii) when and how the trust assets shall be disposed of. However, succession by trusts can be done only within certain limitations under the Korean inheritance law. The most important limitation is the potential claim of the spouse, the children or even other relatives: it is called ‘forced share.’ The relation between succession by trusts and the forced share is an important legal issue to resolve, but there has not been yet established interpretation on how to calculate the infringed forced share and who (i.e., a trustee or a beneficiary) such claim should be filed against when succession by trusts infringes upon the forced share. In this regard, this paper examines the relation between succession by trusts and the forced share under the Korean law. In so doing, this paper examines how the elective share of the surviving spouse works in relation with revocable trusts under the U.S. law and attempts to gain insights on the above-mentioned issue under the Korea law.

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