The provisions regarding inheritance are regulated in the Compilation of Islamic Law (“KHI”) for heirs who are Muslims, commonly known as Islamic Inheritance Law. Meanwhile, for heirs who are non-Muslims, including Indonesian citizens of Chinese or European descent, they follow inheritance rules in the Civil Code (“KUHPerdata”), Customary Law, or recognized religious laws in Indonesia. This article will discuss the provisions and procedures of inheritance from the perspective of Islamic Inheritance Law and KUHPerdata.
ISLAMIC INHERITANCE LAW
Referring to Article 171 of the KHI, inheritance only occurs when the deceased, who at the time of death or as declared by a court decision (Death Certificate), is a Muslim, leaving behind heirs and an estate (property, rights, and obligations of the deceased).
Those who can be considered as heirs in Islamic law are listed in Article 171 letter c of the KHI
“Heirs are people who, at the time of death, have blood or marital relations with the deceased, are Muslims, and are not prevented by law from becoming heirs.”
Regarding the prevention of someone from becoming an heir, it is regulated in Article 173 of the KHI, which states:
“A person is prevented from being an heir if, by a court decision that has legal force, they are convicted of:
-
- Being blamed for killing/attempting to kill/seriously harming the heirs
- Being falsely accused of reporting that the deceased committed a crime punishable by imprisonment for 5 years or a more severe punishment.”
Can Heirs Reject Inheritance from the Perspective of Islamic Inheritance Law?
There are no provisions in the KHI regarding the right of heirs to reject inheritance. In Islamic law, the inheritance system is carried out immediately because it is a decree from Allah SWT. Every person who dies does not need to plan the use of their wealth because the estate will be opened and immediately transferred to the heirs. The transfer of inheritance directly to the heirs has been agreed upon by scholars as the principle of Ijbari. Etymologically, this principle is interpreted as compulsion, especially when it comes to heirs (they cannot refuse) to accept the transfer of rights to the estate according to the amount determined by Allah SWT. This means that heirs are not given the opportunity to reject the inheritance because the compulsion element in becoming heirs has been determined by Allah SWT.
However, there is another provision that allows heirs to withdraw peacefully or known as takharuj, which means there is a replacement of the heir’s position caused by a request from the concerned heir to withdraw as an heir and ask another heir to replace their position.In principle, takharuj is a form of peaceful distribution of inheritance through consultation among the heirs. The consultation aims to remove one of the heirs and provide a certain amount of wealth as compensation. According to Sharia, takharuj is allowed if all the heirs agree/sincerely accept the agreement. The takharuj agreement can be made by all heirs or only some of them.Thus, according to Islamic Inheritance Law, heirs do not have the right to reject inheritance. However, they can withdraw peacefully as heirs (takharuj), which is done by conducting consultations with the heirs and making a takharuj agreement.
CIVIL CODE
The principle of inheritance according to the Civil Code is only due to the death of the deceased. Those entitled to be heirs are listed in Article 832 of the Civil Code, namely people who have blood relations with the deceased, both legitimate according to the law or outside of marriage, and the spouse of the deceased with the condition that the spouse is still married when the deceased died.
Furthermore, if there are no blood relatives and spouses of the deceased, then all the estate becomes state property, which is obliged to settle the debts of the deceased, as far as the price of the estate is sufficient for that.
The Civil Code regulates those who are considered unworthy to be heirs and thus cannot receive inheritance, as stipulated in Article 838 of the Civil Code, namely:
- Those who have been sentenced for killing/attempting to kill the deceased;
- Those who have been convicted by a Judge for falsely accusing the deceased, that the deceased had committed a crime punishable by imprisonment for five years or a more severe punishment;
- Those who have prevented the deceased with violence or actual acts from making or revoking their will;
- Those who have concealed, destroyed, or forged the will of the deceased.
Can Heirs Reject Inheritance from the Perspective of Civil Code?
The Civil Code regulates regarding heirs who have been declared entitled and deserving of inheritance, whether it be property brought into the marriage, shared property, or debts of the deceased, they have the right to consider whether they want to accept or reject the inheritance, as stipulated in Article 1023 of the Civil Code, Article 1024 of the Civil Code, Article 1045 of the Civil Code.
Article 1023 of the Civil Code
“All persons who acquire rights to an inheritance, and wish to investigate the state of the estate, whether it is beneficial to them, to accept the inheritance purely, or with the privilege to register the estate, or to reject it, have the right to consider, and they must make a statement in the registry of the District Court, in whose territory the inheritance has fallen open; which statement will be entered in a register provided for that purpose.”
“In places separated by the sea from direct communication with the location of the District Court, the statement may be given to the head of the local government, who will then make a record of it and send it to the District Court which will then order its registration.”
Article 1024 of the Civil Code
“The heir is also given a period of four months, starting from the day of the statement, to arrange the details of the estate and to consider. The District Court is authorized to extend the above-mentioned period, based on urgent circumstances, if the heir is sued before a Judge.”
Article 1045 of the Civil Code
“No one is obliged to accept an inheritance that falls into their hands.”
Thus, according to the Civil Code, heirs can reject an inheritance, which must be done by declaring it explicitly and in writing to the competent District Court, as stipulated in Article 1057 of the Civil Code
“Rejecting an inheritance must be done explicitly, and must happen by giving a statement in the registry of the District Court in whose jurisdiction the inheritance is open.”
Someone who has rejected inheritance will then be considered to have never been an heir, and the inheritance share of the person who rejected it will fall to the heirs who did not reject the inheritance.Based on the above description, there are significant differences in the provisions regarding inheritance between the Civil Code and Islamic Inheritance Law.
| CONCLUSION | Heir’s Rejection of Inheritance | Procedure |
| ISLAMIC INHERITANCE LAW | Not rejection, but rather withdrawal as an Heir. | Conducting consultations with the Heirs and making a Takharuj Agreement. |
| CIVIL CODE |
The Heirs have the right to reject inheritance. |
Providing a clear and written statement to the District Court in the jurisdiction where the inheritance is open (the District Court in the area where the deceased passed away). |
To understand the legal process of rejecting inheritance or withdrawing as Heirs, one can consult a Advocate. If you require Legal Consultation, you can contact us through:
Email: Secretary@mnllaw.co.id
Phone: 0812 9539 7825 / 0813 98941976