Substitute Heirs Under Article 185 of the KHI: Grandchildren Whose Parents Died First

Why can grandchildren take the place of their parents?

In a family, sometimes a grandfather or grandmother dies before a grandchild. However, there are also cases where the parent of a grandchild has already died before the deceased (pewaris). For example, Mr. Hasan dies, while his son, Budi, has already died earlier. Budi leaves two children, Rizky and Nisa. Do Rizky and Nisa still receive a share of Mr. Hasan's estate?

The Qur'an, An-Nisa 4:11, regulates the shares of sons and daughters, but does not specifically mention grandchildren. In Indonesian Islamic inheritance law, the Compilation of Islamic Law (KHI) Book II provides a way through the institution of substitute heirs (ahli waris pengganti). Article 185 of the KHI stipulates that an heir who dies before the deceased (pewaris) may be replaced by their child, except those mentioned in Article 173. This article discusses its meaning simply, not as a fatwa or legal advice.

What is meant by a substitute heir?

A substitute heir is not a new heir who reduces the shares of other heirs. They take the share that their parent would have received if the parent were still alive. Thus, Budi's position as Mr. Hasan's son is replaced by Budi's children.

Article 185 paragraph (2) of the KHI also sets a limit: the share of a substitute heir may not exceed the share of an heir of equal degree to the one being replaced. This limit is important in complex cases. IndoWaris calculations do not yet model this limit, so if the calculation result approaches that limit, it is advisable to consult the Religious Court (Pengadilan Agama) or an expert who understands the KHI.

Requirements and matters to note

• The parent being replaced must have died before the deceased (pewaris).
• That parent, if alive, must be entitled to inherit and not be barred by Article 173 of the KHI, for example because they are proven to have killed or seriously harmed the deceased.
• The substitute heir is the child of that parent, not a nephew or other relative.
• The share taken is the parent's share, then divided among the substitutes in a 2:1 ratio between males and females.
• If there are several grandchildren from one parent, they together receive that parent's share; they do not each receive a full share.

Calculation example: grandfather, wife, daughter, and two grandchildren

Mr. Hasan dies leaving an estate of Rp 800,000,000. He has a wife, Mrs. Aminah, a daughter, Sari, and two grandchildren from Budi, his son who died earlier, namely Rizky and Nisa.

If Budi were still alive, he would be an heir together with Mrs. Aminah and Sari. Mrs. Aminah receives 1/8 because there is a child. Sari, as the only daughter, receives 1/2. The remainder, 3/8, is Budi's share as the son. Since Budi has died, that 3/8 share is given to Rizky and Nisa as substitute heirs, divided 2:1.

Note that Nisa receives 1/8 of Mr. Hasan's estate, not 1/2 like a daughter. She does not replace Sari's position, but takes her father Budi's share. If there are more than two substitutes, Rizky and Nisa, the 2:1 division still applies among them.

If the grandchildren are from a daughter, and other questions

Article 185 of the KHI mentions the child of an heir who died earlier without distinguishing male or female. However, in practice, cases of grandchildren from a daughter may depend on the judge's considerations and the practice of the Religious Court. Therefore, do not decide on your own if the case is not simple. Consult the Religious Court or a religious teacher (ustadz) who understands faraid and the KHI.

Substitute heirs are also different from the mandatory will (wasiat wajibah) for adopted children. A substitute takes the share of their biological parent who died earlier, whereas the mandatory will is given based on separate provisions. If a substitute heir dies after the deceased but before the estate is divided, their share becomes their own inheritance and is distributed to their heirs. This is called munasakhah.

Practical steps before dividing

1. Collect the death certificate of the deceased and the death certificate of the parent who died earlier.
2. Create a family tree to ensure who is a child, who is a grandchild, and who is still alive.
3. List the assets, debts, funeral costs, and wills that must be settled before distribution.
4. Calculate the shares carefully, then check whether the total is exactly 1 or 100 percent.
5. Deliberate the results with all heirs and make written notes.
6. For land and buildings, consult a notary or PPAT about the transfer of title and taxation.

IndoWaris can help draw the family tree and calculate shares as material for deliberation. This article is general information, not a fatwa or legal advice. Each family should check documents and consult the Religious Court, a notary or PPAT, or a trusted ustadz before making decisions.