Constitutional Court upholds old custom giving widows priority in inheritance

The Constitutional Court ruled that an old inheritance custom granting a widow priority over the deceased's parents did not violate the Constitution.

The court voted 6-3 to uphold the custom, which applied before the Civil Act took effect, under which the property of a married eldest son who was not a household head and died without direct descendants passes to his wife.

At issue was a 3,707-square-meter tract of forest in Geumchon-dong, Paju, that now sits on the site of a railway station and tracks on the Gyeongui-Jungang Line. The inheritor, who died in May 1919, was married but had no children, and his descendants sued the Republic of Korea for ownership of the land, losing in the lower courts and the Supreme Court before filing the constitutional complaint in 2022.

In its reasoning, the court said the widow had formed a new household with the deceased through marriage and had helped build the estate through mutual support and cooperation, and pointed to the era's conditions, in which women faced severe obstacles to independent careers and economic activity.

"Given that the widow formed a new household with the deceased through marriage and helped build the estate through mutual support and cooperation, and considering the circumstances of the time when women's independent social advancement and economic activity were markedly difficult, the need to protect the livelihood of a widow who was likely to suffer economic hardship after the inheritor's death was great," the court said. "It is difficult to regard this customary law as contrary to the purpose of the inheritance system."

The court added that the custom matched the existing inheritance order under the household-head system, and that denying the effect of a custom that has already been abolished would upend legal relationships settled under it.

Three justices dissented, arguing that customary law never passes through the National Assembly's legislative process and cannot be regarded as having the same effect as a statute enacted by the legislature, and therefore cannot be a subject of constitutional review. Justices Chung Hyung-sik, Cho Han-chang and Chung Kye-seon said the complaint should be dismissed.

"Customary law involves no participation by the National Assembly, and it cannot be seen as a norm given the same effect as a statute enacted by the National Assembly under the Constitution, nor can it be regarded as having the same effect as a statute in the formal sense," the three justices said.

The decision maintains the court's earlier position, established in its 2017 ruling, that customary law can be subject to constitutional complaints.