Children in the Womb and Missing Persons (Mafqud): How Is Their Inheritance Distributed?

In the distribution of an inheritance, one thing is always required first: certainty about who was alive at the time the deceased passed away. Two situations make that certainty not immediately available, namely a baby still in the womb and a relative who has disappeared without news (in fiqh called mafqud). Neither is a rare case. Therefore, the family needs to know how to address them so that the distribution remains fair and does not give rise to disputes later on.

Why are these two cases complicated?

Islamic inheritance law rests on the actual circumstances at the time the deceased died. A child still in the womb may be born alive and become an heir, but may also be stillborn. A missing person may still be alive, but may also have died. As long as one of these possibilities is not certain, the inheritance may not be distributed as if everything were already clear.

The principle applied is simple: a share that is not yet certain is held, not disregarded. The other heirs receive their shares first, while the share of the baby or missing person is set aside until their status is clear.

Children in the womb as heirs

"Allah instructs you concerning your children (in the division of inheritance)..." (QS An-Nisa 4:11)

This verse places children as primary heirs. In practice, a child still in the womb is treated as a prospective heir on the condition that it is later born alive, even if only briefly. If stillborn, it receives no share, and the share that was held is distributed to the heirs entitled to it.

Being born alive is the condition. A baby born alive and then dying still receives a share, and that share then becomes its own estate, inherited by its heirs.
Twins are counted separately. If two or more children are born, each receives a share as an heir, not one share for both.
The maximum gestational age is disputed among scholars. The scholars differ on the maximum gestational age still recognised. In Indonesian positive law, the Civil Code (KUHPerdata) uses a benchmark of 300 days. Because this is a matter of ijtihad and practice, it is best consulted with the Religious Court or a trusted ustadz.

Calculation example: holding the share until the baby is born

Pak Hadi passed away. He left a wife (Bu Sari), his mother (Ibu Aminah), one son (Rizky), and a baby still in the womb. The estate, after clearing debts and bequests, amounts to Rp480 million.

Heir	Basis of share	Share
Wife	1/8 because there is a child	6/48
Mother	1/6 because there is a child	8/48
Rizky (son)	Residuary, calculated on the smallest possibility	17/48
Baby in the womb	Held until birth	17/48

The remainder after the wife's and mother's shares is 34/48. Because the baby's sex is not yet known, the son's share is calculated on the smallest possibility, namely if the baby is born male (two sons, each 17/48). The rest is held.

If the baby is born male, the distribution is complete: each child receives 17/48. If the baby is born female, the son is entitled to twice the daughter's share, namely 17/36 (equivalent to 34/72), while the baby girl receives 17/72. The difference from the share already handed to Rizky is returned to him. The calculation still balances: 34/72 + 17/72 = 17/24, which is the entire remainder of the estate.

IndoWaris can draw the family tree and calculate the shares of the heirs, including marking shares that need to be held because there is a baby in the womb.

Missing persons (mafqud)

Mafqud is a person whose whereabouts are unknown and there is no news whether they are still alive or have died. In fiqh, their own property is not distributed to their heirs as long as their status is unclear. Conversely, if they are entitled to inherit the property of a deceased relative, their share is set aside and held for them.

KHI does not regulate mafqud in detail, so in practice reference is made to fiqh and court determinations. In Indonesia, families usually file a request with the Religious Court so that the status of the missing person is determined after a certain period of time. Because this involves a legal determination, this step should be taken with the help of a legal expert, not decided by the family alone.

If the missing person later reappears, the held share is handed over to them.
If they are declared deceased, that share becomes their estate and is distributed to their heirs (munasakhah).
As long as their status is unclear, that share may not be used or distributed to other heirs.

Practical checklist

First establish which heirs were actually alive at the time the deceased passed away.
Record any ongoing pregnancy, including the estimated gestational age and medical examination results.
Calculate the shares of the other heirs, then set aside the share of the baby or missing person.
Make a written record or family agreement about the held share, so that it is not forgotten and does not give rise to suspicion.
For missing-person cases, consult the Religious Court before distributing the estate.

Next steps

If your family is facing either of these cases, begin by listing the heirs and the assets in writing, then hold the shares that are not yet certain. For a baby in the womb, wait for the birth before the final distribution. For a missing person, pursue the court determination route. This article is general information, not a fatwa or legal advice; for binding decisions, please consult the Religious Court, a notary/PPAT, or an ustadz you trust.