Maximum One-Third Bequest and Mandatory Bequest (Wasiat Wajibah) for Adopted Children

Getting to Know Wasiat and How It Differs from Hibah

Wasiat is a person's message concerning property that must be fulfilled after he dies. In Islamic law, wasiat is regulated in the Qur'an and KHI (Compilation of Islamic Law) Book II Articles 171–214. Unlike hibah (gift) which is given while still alive, wasiat only takes effect after the testator passes away. Wasiat is usually used to give a portion of the estate to someone who is not an heir, or for social and religious purposes.

Unfortunately, many families still do not understand the limits of wasiat. As a result, disputes can arise later on. This article will discuss the rules of the maximum one-third bequest of the estate, as well as wasiat wajibah for adopted children and adoptive parents according to KHI.

Maximum Limit of Wasiat: One-Third of the Estate

KHI Article 195 affirms that property bequeathed may not exceed one-third (1/3) of the inheritance, unless all heirs agree to it. This provision is important to protect the rights of the heirs, especially children and spouses who were dependents of the deceased.

For example, if the total inheritance after deducting debts and funeral expenses is Rp 300 million, then the maximum wasiat is Rp 100 million. If the wasiat exceeds this limit without the heirs' approval, the excess is invalid and must be returned to the inheritance to be divided according to faraid.

Wasiat also may not be given to an heir who already receives a fixed share (residuary heir (ashabah) or furudh), unless the other heirs permit it. This is to prevent injustice.

Wasiat Wajibah for Adopted Children and Adoptive Parents

Adopted children have a special position in KHI. Although in terms of lineage they remain connected to their biological parents, KHI Article 209 grants wasiat wajibah to an adopted child who does not receive a wasiat, and conversely to an adoptive parent who does not receive a wasiat. The amount of the wasiat wajibah may not exceed one-third of the inheritance.

Wasiat wajibah is a bequest determined by the court or based on law, even though the deceased did not write a wasiat. Its purpose is to provide justice for an adopted child who has been cared for and lived with the deceased. However, wasiat wajibah does not excessively reduce the shares of the primary heirs because it is still limited to 1/3.

It is important to note: wasiat wajibah only applies if the adopted child or adoptive parent does not receive a wasiat voluntarily. If they have already been given an ordinary wasiat, then wasiat wajibah is no longer granted.

Example of Calculating Wasiat and Wasiat Wajibah

Mr. Ahmad passed away with an inheritance of Rp 300 million after deducting debts and funeral expenses. He left behind a wife, two biological sons, and an adopted child named Budi. Mr. Ahmad did not write a wasiat, but Budi has been cared for since childhood. According to KHI Article 209, Budi is entitled to a wasiat wajibah of a maximum of 1/3.

Calculation steps:

1. Calculate the maximum wasiat wajibah: 1/3 x Rp 300 million = Rp 100 million. Suppose the court determines the wasiat wajibah for Budi in the amount of Rp 50 million (not exceeding the limit).
2. Remaining estate after the wasiat wajibah: Rp 300 million – Rp 50 million = Rp 250 million.
3. Distribute the remaining estate to the heirs: The wife receives 1/8 because there are children. 1/8 x Rp 250 million = Rp 31.25 million.
4. Remainder for the two sons: Rp 250 million – Rp 31.25 million = Rp 218.75 million. Each son receives Rp 109.375 million.

Total: Rp 50 million (Budi) + Rp 31.25 million (wife) + Rp 109.375 million + Rp 109.375 million = Rp 300 million. This calculation complies with the rules of faraid and KHI.

If Mr. Ahmad had previously written a wasiat for Budi in the amount of Rp 80 million, then wasiat wajibah is no longer granted because Budi has already received a wasiat. However, that wasiat still may not exceed 1/3.

Adab and Ethics in Making a Wasiat

Islam teaches that a wasiat should be made with good intentions and should not cause conflict. Some adab to observe:

• Intend to seek Allah's pleasure, not to exclude certain heirs.
• Communicate with the family, especially the heirs, about the wasiat plan.
• Make the wasiat in writing and witnessed by two just witnesses.
• Do not exceed the one-third limit without the heirs' approval.
• Settle debts and funeral expenses before the wasiat is fulfilled.

With this adab, a wasiat becomes a means of goodness, not a trigger for division.

Practical Next Steps

If you plan to make a wasiat or are facing a wasiat wajibah situation, start by carefully calculating the inheritance. Separate joint property (gono-gini) if any, and record all debts and funeral expenses. To make it easier, IndoWaris can draw the family tree and calculate inheritance shares automatically, including taking into account wasiat and wasiat wajibah according to KHI.

Also consult the Religious Court, a notary, or a trusted ustadz, because each case can be different. Remember that this article is general information, not a fatwa or legal advice. May Allah ease our steps in fulfilling the rights of the heirs justly.