Right to reside for widows and widowers

The Legislative Council, an advisory body for the justice minister, has introduced in an outline of Civil Code revisions the right for a widow or a widower to continue to live in an inherited residence. The government plans to submit the necessary legislation to the Diet during the current session. The new right, which as a concept differs from ownership of a residence and land in inheritance, will help relieve widows and widowers of financial worries following the death of their spouses. But the right of residency will be accorded only to people in legal marriage. People in a non-legal de facto marriage will not be entitled to the new right. Whether in a legal marriage or in a de facto marriage, the fact remains that the couple are living in a state of marriage. The Justice Ministry should rethink the Legislative Council’s recommendation from the viewpoint of ensuring equal treatment to married couples irrespective of their legal status.

To understand the concept of the right of residency, it is important to know the background of its introduction by the advisory council. In September 2013, the Supreme Court decided that a Civil Code provision that gives illegitimate children a smaller portion of a legacy than legitimate children — half the amount the latter are entitled to — is unconstitutional. In December that same year, a bill to revise the Civil Code in accordance with the Supreme Court decision was enacted. But some Liberal Democratic Party members expressed a belief this would lead to a collapse of the family system. Responding to their argument, the Justice Ministry started to consider ways to give preferential treatment to legally married couples. In 2015, Justice Minister Yoko Kamikawa asked the advisory body to consider and submit recommendations related to the matter.

Members of the advisory council paid attention to the possibility that although a widow or widower is legally entitled to inherit half of a legacy, if she or he inherits residential property that has a high appraised value, the amount of cash and savings she or he gets will be reduced, thus causing financial difficulty.

The outline provides two types of right of residency. The right of short-term residency is a temporary right designed to prevent a situation in which a widow or widower is suddenly forced to leave their residence. The right of long-term residency is given to a widow or widower through negotiations with relatives on the division of a legacy or a decision by a family court if he or she wants it. The right of long-term residency ensures residency for life or for a specified lengthy period of time. Even if the ownership of the residence and the land is transferred to another person, the right of residency will remain intact for the remaining spouse.

The value of the right of residency will be set at a lower figure than the appraised value of the residence and the land. In the case a widow or a widower obtains the right of residency and a child inherits the ownership of the residence and the land, the widow or the widower gets more cash and savings than if she or he inherited the ownership of the residence and the land.

The outline also inaugurates a system that favors people who have married at least 20 years. If a husband or a wife has given their residential property to his or her spouse as an inter vivos (between the living) gift or has declared in a will that his or her spouse will inherit the residency, the property will be excluded in the calculation of the value of the legacy to be inherited. In the advisory body’s opinion, this provision and the right of residency are expected to prevent a situation in which an elderly person who has inherited residential property with a high appraised value ends up being forced to sell it in order to survive financially.

The outline also contains a system that deals with a situation involving the death of a person who received nursing care from a non-relative. If certain conditions are met, the non-relative can seek monetary compensation from the person’s relatives who are entitled to the inheritance.

The various ideas included in the outline are intended to cope better with problems arising in a country with a rapidly graying population, but they can be applied only to people in a legal marriage. The advisory body failed to take into consideration the fact that an increasing number of people are choosing to live in a state of de facto marriage mainly out of the fear that the legal requirement that a couple must adopt the same surname in registering their marriage will affect their careers and other activities. The way in which people in Japan form families is going through a deep transformation, including cohabitation of same-sex couples. The government needs to devise measures to fill the gap between what is proposed in the advisory body’s outline and what is actually happening in Japanese society.