Maximum One-Third Wasiat and Wasiat Wajibah for Adopted Children

Two questions that often come together

When a family adopts a child, two questions usually arise and get mixed into one. First, "What will our adopted child's share be later?" Second, "May we write a wasiat for him, and how much?" The two are related, but the answers differ and are governed by different articles in the Compilation of Islamic Law (KHI) Book II.

Separating these two questions matters. If they are mixed up, a family can easily mistakenly assume that an adopted child automatically inherits like a biological child, or conversely assume that he is entitled to nothing. In practice at the Religious Court (Pengadilan Agama), the position of an adopted child is indeed recognized, but through a different route from the faraid route.

The one-third limit: the basic rule of wasiat

Wasiat is a person's instruction concerning property that takes effect after he dies. In Islamic law, wasiat is not a free path to transfer all property, because the rights of heirs have already been established. Several guardrails to keep in mind:

• Wasiat is only carried out after the deceased's debts and funeral expenses are settled, and may not exceed one-third of the inheritance (KHI Article 195 paragraph 2).
• A wasiat exceeding one-third is not automatically void, but is only valid if all heirs agree to it. Without that agreement, the wasiat is carried out only up to the one-third limit.
• A wasiat to a person who is also an heir is invalid, unless all heirs agree to it (KHI Article 195 paragraph 3). This is known from the rule la washiyyata li warits — there is no wasiat for an heir.
• Wasiat may not be used to quietly "close off" the rights of other heirs, for example by writing almost all assets for one person.

This one-third limit is calculated from the inheritance, that is, the net property after debts, funeral expenses, and other obligations are deducted — not from the total gross property.

An adopted child is not an heir, but has a route: wasiat wajibah

Child adoption under KHI does not create nasab. Because heirs are determined by nasab, marriage, and wala', an adopted child is not included in the list of heirs as regulated in Article 171 onward. He does not receive a faraid share like a biological child, and the share of biological children remains 2:1 between male and female.

However, KHI opens another route through wasiat wajibah in Article 209:

• An adopted child who does not receive a wasiat is given wasiat wajibah of at most one-third of the inheritance of his adoptive parents.
• Conversely, adoptive parents who do not receive a wasiat are given wasiat wajibah of at most one-third of the inheritance of their adopted child.

Two things need to be emphasized. First, the one-third figure is a maximum limit, not an amount automatically granted. Second, wasiat wajibah differs in nature from an ordinary wasiat: it is established to provide justice, and in practice its determination may involve a judge's considerations. Therefore, if the estate left is large or there are other heirs who object, it is best to consult the Religious Court or an ustadz who understands KHI.

A simple calculation example

Pak Hadi dies leaving a wife and two biological sons. He had also adopted Rizky as an adopted child, who has no nasab relationship with him and did not receive a written wasiat. After debts and funeral expenses are paid, his net inheritance is Rp600,000,000.

1. Wasiat wajibah for Rizky is taken first, at most one-third: 1/3 × Rp600,000,000 = Rp200,000,000.
2. Remaining property for the heirs: Rp600,000,000 − Rp200,000,000 = Rp400,000,000.
3. The wife receives 1/4 because there are children: 1/4 × Rp400,000,000 = Rp100,000,000.
4. Remainder for the two sons: Rp400,000,000 − Rp100,000,000 = Rp300,000,000, so each receives Rp150,000,000.

Double-check: Rp200,000,000 + Rp100,000,000 + Rp150,000,000 + Rp150,000,000 = Rp600,000,000. It matches, with no remainder and no excess.

If during his lifetime Pak Hadi wrote an official wasiat for Rizky amounting to one-quarter of the property, that wasiat can only be carried out up to one-third, unless his wife and both children agree to give more.

Things to check before signing a wasiat

• Make sure the property bequeathed truly belongs to the testator, not joint property that has not yet been separated from the spouse.
• Recalculate the one-third limit from the net property, not from the gross land price.
• Check whether the recipient of the wasiat is also among the heirs. If so, the consent of the other heirs becomes a condition.
• For an adopted child, consider whether wasiat wajibah is more appropriate than an ordinary wasiat, and how much is reasonable compared with the needs of other heirs.
• Keep the adoption documents, death certificate, and list of property in order so that the division does not drag on.

Practical next steps

Start by writing down the list of net property, the list of heirs, and who should be given a wasiat. If there is an adopted child, discuss it openly with the other heirs while the property owner is still alive; an honest agreement is far more reassuring than a dispute after death. For property in the form of land and buildings, consult a notary/PPAT so that the wasiat letter and the name-transfer process comply with the provisions. If there is a difference of opinion among the heirs, the Religious Court is the right place to request a determination.

IndoWaris can help map the family lineage and calculate the shares of the heirs, so that you have a picture of the figures before consulting. Keep in mind, this article is general information, not a fatwa and not legal advice. Each case can differ, especially because the circumstances of the property and the composition of the family are not always the same.