The Position of Non-Muslim Heirs in Islamic Inheritance According to KHI

When someone passes away, the first question that often arises is who is entitled to receive the inheritance. In Islamic inheritance law applicable in Indonesia, religion is one of the fundamental requirements. This article discusses the position of non-Muslim relatives in the distribution of inheritance according to the Compilation of Islamic Law (KHI), as well as the available avenues to still provide goodness to them.

Why Religious Status is Determinant

Islamic inheritance not only regulates the distribution of wealth but also maintains family relationships based on faith. KHI places Islam as a requirement to become an heir. This does not mean that non-Muslim relatives are not respected, but rather that the Islamic inheritance system has its own provisions regarding who is entitled to receive the inherited wealth.

In practice in the Religious Courts, this requirement is applied strictly. However, KHI also provides room for the owner of the wealth to make a wasiat or grant a hibah of part of his wealth to anyone, including non-Muslim relatives, as long as it does not exceed the specified limits.

Requirements for Heirs in KHI: Article 171 and Its Difference from Article 173

Article 171 letters b and c of KHI explain that an heir is a person who at the time the testator passes away has a blood or marital relationship, is Muslim, and is not legally barred from becoming an heir. In other words, being Muslim is a requirement inherent in the definition of an heir.

It is important not to confuse this with Article 173 of KHI. Article 173 regulates the impediments to inheritance, namely an heir who is convicted of killing, attempting to kill, or severely persecuting the testator, or slandering the testator with a criminal accusation that carries a penalty of 5 years or more. Thus, a non-Muslim is not 'barred' by Article 173, but rather does not fulfill the requirements as an heir from the outset. Consequently, they are not included in the faraid calculation.

What Happens to Non-Muslim Relatives?

Because they do not fulfill the requirements, non-Muslim relatives do not receive a share of the inheritance according to faraid. However, there are several avenues that can be taken to still provide a share to them:

• Wasiat: The testator can make a wasiat to non-Muslim relatives, with a maximum limit of 1/3 of the inheritance after deducting debts and funeral expenses.
• Hibah: Granting a hibah during one's lifetime to non-Muslim relatives is valid. A parent's hibah to a child can be counted as inheritance (Article 211 of KHI), but for a non-Muslim child, the hibah remains a separate gift.
• Wasiat wajibah: In certain cases, the Religious Court can stipulate a wasiat wajibah, for example for an adopted child or adoptive parent (Article 209 of KHI), but not specifically for non-Muslim heirs.

It should be noted that scholars differ in their approach to non-Muslim relatives. Some contemporary scholars discuss the possibility of granting a wasiat wajibah, but KHI has not specifically regulated it. Therefore, consultation with the Religious Court or a trusted ustadz is highly recommended.

Calculation Example: When There is a Non-Muslim Child

For example, Mr. Hasan passed away leaving an inheritance of Rp 240,000,000. He has a wife (Mrs. Aminah), two Muslim sons (Budi and Candra), and one non-Muslim daughter (Dewi).

The heirs entitled are Mrs. Aminah, Budi, and Candra. Dewi is not included as an heir because she is not Muslim.

• Mrs. Aminah as wife: because there are children, she receives 1/8 of the inheritance = Rp 30,000,000.
• Remaining wealth: Rp 240,000,000 - Rp 30,000,000 = Rp 210,000,000.
• Budi and Candra as sons receive residuary heir (ashabah), divided equally: each Rp 105,000,000.

Total: Rp 30,000,000 + Rp 105,000,000 + Rp 105,000,000 = Rp 240,000,000. This calculation shows that Dewi does not receive a faraid share, but she can still receive a wasiat or hibah from her father during his lifetime.

Middle Path: Wasiat and Hibah

Wasiat and hibah are two instruments that can be used to provide a share to non-Muslim relatives without violating Islamic inheritance provisions. Wasiat is a maximum of 1/3 of the inheritance, while hibah does not have a 1/3 limit if given to a child, but one should still observe fairness and not harm the Muslim heirs.

In practice, the making of a wasiat should be done before a notary and two witnesses. For land and buildings, the hibah must be made with a PPAT deed so that it is legally valid and facilitates the transfer of rights.

Practical Steps and Conclusion

Dealing with the situation of non-Muslim heirs does require caution. The following are practical steps that can be taken:

1. Consult your case with the Religious Court, a notary/PPAT, or a trusted ustadz to understand rights and obligations appropriately.
2. Prepare documents such as family card, death certificate, and proof of asset ownership.
3. If you wish to give a share to non-Muslim relatives, consider a wasiat or hibah according to the provisions.
4. Use tools such as IndoWaris to draw the family tree and calculate the shares of the Muslim heirs automatically.

Islamic inheritance teaches justice and compassion. Although non-Muslim relatives do not receive inheritance through faraid, the door of goodness remains open through wasiat and hibah. May this explanation help your family understand the applicable provisions.