ISLAMIC INHERITANCE LAW

YENI SALMA BARLINTI

PRINCIPLES OF ISLAMIC INHERITANCE LAW

1. Bilateral male and female have rights to inherit from their parents and relatives through male and female lines

2. Ijbari the Islamic inheritance law prevails automatically because of death. Allah determines the law for human (muslim must obey the devine law).

3. Death inheritance law is applied if there is a death4. Individual male and female get legacy (estate) as

an individual, and it belongs to individual5. Fairness the shares of estates that determined by

Allah are fair. The fairness is not about amount of shares, but the function of shares for person

6. Islamic personality Islamic inheritance law is only for muslim: the deceased and heirs

SYSTEMS OF ISLAMIC INHERITANCE IN INDONESIA

1. System of Bilateral HazairinIslamic inheritance law is available for male and female through male and female lines

2. System of Patrilineal Syafi’iIslamic inheritance law is inclined (prefer) to male lines

3. System of Compilation of Islamic Law (Kompilasi Hukum Islam, KHI)

Combination of bilateral and patrilineal, but inclined to patrilineal

PILLARS OF ISLAMIC INHERITANCE

1. Muwaris the deceased2. Waris heir(s)3. Maurus estate

TERMS/REQUIREMENTS OF ISLAMIC INHERITANCE

1. The deceased muslim2. The survival of heir(s) muslim3. Estate / legacy4. Relationship between the deceased

and heir(s)1. Cognation2. Relations by marriage

5. The heirs have no hindrance/obstacle different religion, kill the deceased

CLASSIFICATION OF HEIRS

Bilateral-Hazairin1. Zul fara’id2. Zul qarabat3. Mawali

Patrilineal-Syafi’i4. Zul fara’id5. Ashabah: ashabah binnafsihi, ashabah

bilghairi, and ashabah maal ghairi6. Zul arham

Cont’d

Compilation of Islamic Law1. Zul farai’id2. Ashabah3. Substitute Heirs

Zul Fara’id

Heir who has certain share in certain condition

1. Daughter (without son)2. Mother 3. Father, if the deceased has child (children) 4. Husband 5. Wife 6. Brother and sister who are sharing 7. Sister, if the deceased is kalalah.

Zul Qarabat

Heir has uncertain share1. Son2. Daughter, if the deceased has son3. Father, if the deceased has no child

(children)4. Brother, if the deceased is kalalah5. Sister, if the deceased has brother

Mawali

Heir is substitute of original heir who is died first before the death of the deceased

Ashabah

Heir has uncertain share Patrilineal or male lines of the deceased is

required in ashabah 3 Kinds of ashabah :a. Ashabah Binafsihi: heir is ashabah because of

himself position: (i) son, (ii) father, (iii) brotherb. Ashabah Bilghairi: heir is ashabah because of

male’s position: (i) daughter with son, (ii) sister with brother

c. Ashabah Maalghairi: sister who inherits along with daughter

Zul Arham

Heir has cognation with the deceased by female line

Zul-Arham becomes heir if the deceased has no zul-fara’id and ashabah, heir of zul-fara’id of marital relationship is an exception

PRIMARY GROUPS OF HEIRS

Primary groups of heirs only exist in system of bilateral-Hazairin

1st Primary Group1. Children2. Husband/wife3. Father and or mother

2nd Primary Group1. Brother and or sister2. Husband/wife3. Father and or mother

Cont’d

3rd Primary Group1. Husband/wife2. Father 3. Mother

4th Primary Group1. Husband/wife2. Substitute of father 3. Substitute of mother

LEGAL BASIS

QS An Nisa verse 7 QS An Nisa verse 11 QS An Nisa verse 12 QS An Nisa verse 33 QS An Nisa verse 176

SHARES OF CHILDREN

Son, a portion equal to two shares of daughter

If only daughters, two or more, their shares is two-thirds (among them)

If only one daughter, her share is a half

SHARES OF PARENTS

For parents, a sixth share of the estate to each, if the deceased has left children

If no children, and the parents are the (only) heirs, the mother has a third

If the deceased has left brothers (or sisters) the mother has a sixth

SHARES OF HUSBAND & WIFE

Share of husband is a half if the deceased has left no child

Share of husband is a fourth if the deceased has left child

Share of wife is a fourth if the deceased has left no child

Share of wife is a eighth if the deceased has left child

SHARES OF BROTHER AND SISTER

Brother(s) and sister(s) will get shares if the deceased is kalalah

Definitions of kalalah: According to Hazairin bilateral

If the deceased has left no child (son and or daughter) and their descendants (male and female)

According to Syafi’i patrilinealIf the deceased has left no son, son of son or through male’s descent line, and father

According to KHIIf the deceased has left no child (son and or daughter), their descendants (male and female), and father

SHARES OF BROTHER AND SISTER

QS An Nisa verse 12 A brother or a sister is a sixth Brother(s) and or sister(s), they share in a third

QS An Nisa verse 176 A sister is a half Two or more sisters are two-thirds (between them) Brother(s) takes all (if no descendants or

ascendants) or remaining inheritance after other(s)

Brother(s) and sister(s), the male having twice the share of the female

USING OF QS AN NISA : 12 & 176

SUBJECTS

HAZAIRIN

SHAFI’I

QS An Nisa : 12

If father is alive

For uterine

QS An Nisa : 176

If father had died before the deceased

* For full-sister and brother* For consanguine

DISTRIBUTION OF ESTATES

Distribution of estates after payment of: Bequest (wasiyah) maximum a third Debts of the deceased