Differences Between Islamic Inheritance, Customary Inheritance, and Civil Inheritance in Indonesia

In Indonesia, matters of dividing inherited assets can be influenced by three different legal systems: Islamic inheritance law, customary inheritance law, and civil inheritance law (KUHPerdata). For Muslim families, Islamic inheritance law sourced from the Qur'an and KHI (Compilation of Islamic Law) is the foremost. However, in practice, questions about the differences between the three often arise. This article explains the outlines so that you do not take the wrong step.

Legal Basis and Dispute Resolution Institutions

Each system has its own legal basis and forum for resolution.

• Islamic Inheritance: Sourced from the Qur'an (An-Nisa 4:11, 4:12, 4:176) and KHI Book II. Dispute resolution is usually through the Religious Court for Muslims.
• Customary Inheritance: Sourced from unwritten local customary law and varies between regions. Resolution can be through customary deliberation, customary leaders, or the court if necessary.
• Civil Inheritance: Regulated in the Civil Code (Burgerlijk Wetboek). Applies to non-Muslims or those subject to civil law. Resolution through the District Court.

Who is Entitled to Inherit?

The fundamental difference lies in who is recognized as an heir.

In Islamic inheritance, heirs are specified in detail: children, parents, husband/wife, grandparents, siblings, and so on. There is the principle of hijab (barrier), for example, siblings are barred by a child or father. Grandchildren can become substitute heirs if their parents died earlier (Article 185 KHI).

In customary inheritance, the kinship system is very determining. Patrilineal societies (such as Batak) tend to give rights to sons, while matrilineal (Minangkabau) to daughters. There are also parental (Javanese) who divide to both sons and daughters, although the portions may differ.

In civil inheritance, the primary heirs are blood relatives, both in the direct descending line (children, grandchildren) and ascending line (parents), as well as husband/wife. Children inherit in equal portions, without distinguishing gender.

Share Sizes and Principles of Division

The principles of division also differ.

Islamic inheritance recognizes furudh (fixed shares) and ashabah (residuary). For example, sons and daughters receive 2:1; the wife receives 1/8 if there is a child; the mother receives 1/6 if there is a child. All are regulated and cannot be changed arbitrarily.

Customary inheritance is more flexible and often based on deliberation. Portions can vary, depending on contribution or position in the family. There is no standard benchmark as in Islam.

Civil inheritance regulates shares based on groups of heirs. Children receive equal shares. There is also the legitieme portie, which is the absolute portion that cannot be eliminated by a will.

A Simple Example: A Muslim Dies Without Children

Imagine Mr. Ahmad (fictional) dies without children. He leaves behind a wife, father, and a full sibling. In Islamic inheritance, the wife receives 1/4 (because there are no children). The father receives 1/6. The full sibling is barred by the father, so receives no share. The remaining estate after the wife's and father's shares becomes the father's as residuary heir (ashabah). The calculation: wife 1/4, father 3/4 (1/6 + residue).

If the same family chooses the civil system, the result could differ because the Civil Code regulates heirs and shares in another way. Whereas in custom, the decision can depend greatly on family deliberation and local customary law.

This example shows that the choice of system greatly influences the outcome. For Muslim families, Islamic inheritance law is what should be applied.

Choosing the Right System

For Muslims, Islamic inheritance law is binding. Article 171 KHI states that Islamic inheritance law applies to those who are Muslim. If a dispute occurs, the Religious Court has the authority to resolve it. However, if there is a peace agreement among the heirs, that can be done as long as it does not violate sharia provisions.

Customary and civil systems can be options for non-Muslims or in cases where the parties choose to submit to certain laws. However, it is important to remember that Islamic inheritance law does not recognize any choice other than what has been stipulated.

Practical Steps for Families

So as not to be confused, follow these steps:

1. Ensure the religion of the deceased. If Muslim, use Islamic inheritance law.
2. Identify the heirs. Create a family tree to see who is entitled.
3. Calculate the shares. Use the faraid formula. You can utilize IndoWaris which can draw the family tree and calculate shares automatically.
4. Deliberate. Discuss openly with all heirs.
5. Consult. If there are differences of opinion or complicated cases, ask the Religious Court, notary/PPAT, or a trusted ustadz.

This article is general information, not a fatwa or legal advice. Every family has a unique situation, so guidance from experts is highly recommended.