The provisions regarding inheritance are regulated in the Compilation of Islamic Law (“KHI”) for heirs who are Muslims, commonly referred to as Islamic Inheritance Law. Meanwhile, for heirs who are non-Muslims, including Indonesian citizens of Chinese or European descent, they follow the inheritance rules in the Civil Code (“KUHPerdata“), customary law, or recognized religions in Indonesia.
Referring to the jurisprudence of the Supreme Court through Decision No. 172K/Sip/1974, it is stated that in case of inheritance disputes, the applicable inheritance law is based on the religion of the deceased. Therefore, this article will discuss from the perspective of Islamic Inheritance Law.
Article 171 of the KHI states that inheritance only occurs when the deceased, who is Muslim at the time of death or declared dead by a court (death certificate), leaves heirs and assets (property, rights & obligations).
Those who can be considered as heirs are individuals who, at the time of death, have a blood relationship or marital relationship with the deceased, are Muslims, and are not legally barred from being heirs, as regulated in .
However, in the KHI, there is no specific article that regulates the prohibition of inheritance for Muslim heirs and non-Muslim heirs because the KHI only mentions two reasons why someone cannot inherit the estate of the deceased, namely in Article 173 of the KHI which states:
“A person is disqualified from being an heir if by a court decision that has legal force, he is convicted because:
a. He is found guilty of killing/attempts to kill/seriously injuring the heirs;
b. He is found guilty of falsely accusing the deceased of committing a crime punishable by imprisonment of 5 years or more.”
However, there is a hadith of the Prophet Muhammad SAW narrated by Bukhari and Muslim which states:
“A Muslim has no right to inherit from a disbeliever, and nor does a disbeliever have the right to inherit from a Muslim.”
If we look at this hadith, there is a prohibition for non-Muslim heirs to inherit their inheritance rights from a Muslim deceased. However, if we look back at the provisions of the KHI, Article 171 letters b and c state:
Article 171 letter b:
“The deceased is a person who at the time of his death or who has been declared dead by a court decision is of the Islamic faith, leaving heirs and estate.”
Article 171 letter c:
“An heir is a person who at the time of death has a blood relationship or marital relationship with the deceased, is of the Islamic faith, and is not legally barred from being an heir.”
It can be concluded that although the KHI does not specifically regulate the prohibition of inheritance in the case of Muslim heirs and non-Muslim heirs, it is emphasized that both the deceased and the heirs must be Muslims (cannot be of different religions).
So what if the deceased is Muslim, while the wife and children are non-Muslims, can inheritance still be carried out?
Regarding this issue, the Supreme Court in 1995 through its decision No. 368K/Ag/1995 dated July 16, 1998, ruled that a child who converts to another religion has the same status as other children but not as heirs, instead they receive a Compulsory Bequest. This decision has expanded the provision of Compulsory Bequests from previously only regulated in Article 209 of the KHI for adopted children and adoptive parents, now Compulsory Bequests can also be given to heirs who are non-Muslims.
The decision to grant Compulsory Bequests to non-Muslim children was reaffirmed by the Supreme Court a year later, in 1999, through Decision No. 51K/Ag/1999 dated February 29, 1999, which essentially states that heirs who are not Muslims can still inherit from the estate of a deceased Muslim and receive the same portion as the Muslim children, which is done by using the institution of Compulsory Bequests.
In addition to children, in 2010, through Decision No. 16K/Ag/2010 dated April 16, 2010, the Supreme Court ruled that a wife of a different religion (non-Muslim) who has been married to and accompanied a Muslim deceased for 18 years is also entitled to inherit through the institution of Compulsory Bequests. The consideration of the Supreme Court in this decision basically states that the non-Muslim wife has devoted herself to the deceased for a long time. Therefore, even though the wife is a non-Muslim, she is still entitled to her rights as a wife to receive a portion of the inheritance in the form of Compulsory Bequests and a portion of the joint assets according to justice.
Decisions regarding the granting of Compulsory Bequests to non-Muslim heirs (wives/children) were followed by several other decisions such as:
- Decision No. 721K/Ag/2015 dated November 19, 2015, which essentially states that the Plaintiff who has been married to a non-Muslim husband for 17 years is entitled and fair to receive her rights as an heir;
- Decision No. 0042/Pdt.G/2014/PA.Yk dated December 22, 2014, which was later reinforced by the Yogyakarta Religious High Court and also the Supreme Court at the cassation level in 2016 through Decision No. 218K/Ag/2016;
- Decision number 331 K/Ag/2018. In this decision, one of the considerations essentially states that the Supreme Court has observed that the relationship between the Cassation Petitioner and the deceased during his lifetime was quite good and harmonious, even the Cassation Petitioner has accompanied the deceased as a wife through thick and thin, even when the deceased was sick, the Cassation Petitioner still faithfully cared for the deceased and always accompanied him/her to seek treatment in China. Therefore, it is appropriate for the Cassation Petitioner who is a non-Muslim to be given a portion of the inheritance in the form of Compulsory Bequests amounting to 1/4 (one fourth) of the deceased’s estate.
Thus, children and wives who are non-Muslims still have their rights as heirs to inherit from a deceased Muslim through Compulsory Bequests by applying for the determination of heirs to the competent Religious Court.
To understand the legal process related to inheritance in cases where the deceased and the heirs are of different religions, consulting with a lawyer is advisable.
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