부부 일방의 사망과 재산분할·상속, 그리고 사실혼 ―헌법재판소 2024. 3. 28. 선고 2020헌바494, 2021헌바22 결정을 계기로―

The Constitutional Court had an opportunity to review the constitutionality of both the legislative inaction of a claim to equitable distribution for the death of one of the couple in the de facto marriage and that of the right to inheritance thereof. It concluded that the legislative inaction of a claim to equitable distribution for the death is the so-called authentic legislative inaction which cannot be subject to the constitutional review. Moreover, it denied the unconstitutionality of the legislative inaction of the right to inheritance for the surviving spouse of de facto marriage. This conclusion presupposes that the spousal inheritance in case of spousal death is a functional substitute for the equitable distribution in case of divorce. This presumption is, however, incorrect in terms of legislative history of both institutions and the purposes thereof. Spousal inheritance is based on the presumed intent of the deceased while equitable distribution is a liquidation of each party’s rightful share. Accordingly, equitable distribution should have been recognized not only when the couple had divorced but also when one of them had died, irrespective of the existence of spousal inheritance. It is unconstitutional not to allow equitable distribution in case of the death. Besides, the decision reasoned that the inheritance relationship should be clear so that the de facto spouse cannot be the heir however the de facto marriage is similar to the legal marriage. The argument based of the clarity of inheritance relationship is not persuasive. The conclusion that there is no consitutional mandate to grant the heirship to the de facto spouse is still correct because the de facto marriage is not amount to the legal marriage in terms of the constitution, especially in the constitutional guaranty of marriage and inheritance right.