배우자의 상속법상 지위 개선 방안에 관한 연구

Under Korean Inheritance Law, the status of the deceased’s spouse is the same as other co-heirs, except that the share of the spouse is 50% more than that of other co-heirs. However, such treatment is often unsatisfactory, as the share which goes to the spouse is insufficient for the living spouse to maintain his/her standard of living. And indeed, it cannot fully compensate the contribution of the spouse for the formation of the estate. Dealing with the above mentioned problem, other jurisdictions have developed two different solutions. One is to divide the matrimonial property first, as in the case of divorce, and then to have the residual estate inherited. The other is to guarantee certain portion of the estate for the spouse, regardless of the number of co-heirs. The portion may be half or two thirds of the estate. In my opinion, the second solution is preferable to the first. It may be very difficult to prove whether the property at issue belonged to the matrimonial property, when one spouse is absent due to death. Further, the evaluation of the contribution of the spouse is not quite easy. So the division of the matrimonial property in the context of inheritance may prolong the dispute among co-heirs. As such, the living spouse shall be granted certain portion of the deceased’s estate. In addition, the living spouse’s right to the residence should be protected and the right of the spouse to the household goods should be guaranteed.