South Korean Constitutional Court upholds pre-1958 inheritance custom

The Constitutional Court of Korea has ruled that a customary law existing prior to the enactment of the Civil Act in 1958 is constitutional. The law stipulated that if an eldest son, who was not the head of a household, died without direct descendants, his wife would inherit his property exclusively.

The case originated from a dispute involving the descendants of a man who died in May 1919. The deceased had a wife but no children. The descendants of the man's brother filed a lawsuit against the state to claim ownership of land, arguing that the inheritance by the widow was invalid. However, lower courts upheld the customary law, leading to the constitutional challenge.

In a 6-to-3 decision, the Constitutional Court found that the custom did not violate the principle of equality. The majority reasoned that the law was intended to protect the livelihood of widows during an era when women faced significant difficulties in social and economic participation. The court noted that the wife had contributed to the formation of the marital community and that prioritizing her inheritance served the purpose of the inheritance system at that time.

Three dissenting justices argued that the case should have been dismissed, stating that customary law does not hold the same status as formal legislation enacted by the National Assembly and therefore should not be subject to a constitutional petition.