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Inheritance Under National Law

19 February 2024

Oleh: JS

Perspective on Inheritance

Indonesia is a country that is thick with culture and customs due to the plurality of cultures and subcultures. Therefore, legal developments always affect the concept of positive law in Indonesia. One of them is about inheritance whose arrangements are seen from the concepts of customary law, civil law, and also Islamic law. The source of civil law regarding the regulation of inheritance refers to the Civil Code, while the source of Islamic law in the regulation of inheritance refers to the Islamic Code, then in customary law itself the arrangement refers to the customs that develop in a certain area, usually customary law of inheritance will look at the lineage of the mother and / or father.

According to A. Pitlo, inheritance law is a collection of rules governing the law of property after the death of a person: namely, the transfer of wealth left by the dead and the consequences of this transfer for those who acquire it either among themselves or with third parties. Furthermore, Soebekti and Tjitrosudibio suggest a law that regulates what should happen to the property of someone who dies. So it can be concluded that inheritance is all forms of transfer of property of a person who has died to his heirs. The property in question includes debts.

As a giver of inheritance (heir) certainly has rights and obligations as well as recipients of inheritance (heirs). Aspects of inheritance law arrangements that will be discussed in this counseling include the settlement of the distribution of the amount of inheritance to each heir and the principles of inheritance itself. In the community and family, inheritance problems are very often encountered. Including in Blok Duku Village, inheritance problems are closely related to the division of the amount of inheritance, rights, and obligations of inheritance rights. Then, the community does not understand the application of the law in their inheritance problems, therefore the extension team provides education on aspects of inheritance from 3 (three) positive legal perspectives that apply in Indonesia.

Figure 1.1 Documentation of PKM Implementation

A. Civil Inheritance Law

Western Civil Inheritance Law is regulated in book II of the Civil Code (BW). The number of articles regulating inheritance law is 300 articles starting from articles 830 of the Civil Code to 1130 of the Civil Code starting from Chapter 12.

  1. Chapter 12 on Inheritance by Death
  2. Chapter 13 on Wills
  3. Chapter 14 on the Execution of a Will and the Management of the Estate
  4. Chapter 15 on Right of Thought and Privilege to Detail the Estate
  5. Chapter 16 on Acceptance and Rejection of Inheritance
  6. Chapter 17 on Separation of Bequests
  7. Chapter 18 on the Unmanaged Estate.

According to Article 833 of the Civil Code, when a person dies, all his rights and obligations pass to his heirs. In terms of property, the heirs replace the position of the testator. Then, based on Article 833 paragraph (1), heirs can be divided into direct heirs and heirs by replacing heirs. The blood family, both legal and extra-marital, and the longest living spouse are entitled to inheritance according to the law. The heirs of the first, second, third, and fourth blood families consist of four groups. In the discussion of the distribution of heir rights according to the Ab Intestato method.. One of the characteristics of Western Civil inheritance law (BW) is:

  1. Western Civil inheritance law is individual, not an organization of heirs. This shows that the heirs are individuals and do not recognize group heirs.
  2. Bilateral in nature, which means that the father and mother are entitled to be heirs.

The inheritance distribution system is a ranking system. That the heir whose degree is closer to the heir closes the heir who is further away. The point is, as explained above that in the Law there are two ways to get inheritance, one of which is Ab intestato which is known by the existence of four classes of heirs that: – While there is still a group I, then closed the possibility of groups II, II, and IV to receive inheritance from the heir. – If group I does not exist then group II is entitled to receive inheritance from the heir and closed inheritance rights for groups III and IV. – If group II does not exist then the right to receive inheritance is group III and closed inheritance rights for group IV. – If the heirs of group III does not exist then the right to receive inheritance is the heirs of group IV. If all heirs are absent then the entire inheritance will be handed over to the state.

B. Islamic Inheritance Law

To become a legal heir according to Islamic law, a person must have a blood relationship and descent to become an heir. The groups of heirs in Islamic law are:

  1. The group of heirs from among men: sons, grandsons of sons, fathers, grandfathers and so on, siblings, brothers from the father, uncles, sons, husbands, male masters who freed slaves.
  2. Heirs from among women: daughters, granddaughters of sons, mothers, grandmothers, sisters, wives, and female masters who freed slaves.
  3. There are five heirs who are never disinherited, namely: husband, wife, mother, father, and direct children of the testator.
  4. The closest Ashabah are: sons, grandchildren of sons, father, paternal grandfather, brothers in law and one thousand, brothers in law, sons of brothers in law and one thousand, sons of brothers in law, uncles, sons of uncles, and if there is no ashabah, then the master who frees the slave gets it.

Based on Article 176 KHI, it is stated that “if a daughter is only one, she gets half of the share, if two or more of them together get two-thirds of the share, and if the daughter is together with the son, then the son’s share is two to one with the girl. Furthermore, in Article 177 KHI regarding the part obtained by the father “the father gets one-third of the share if the heir does not leave children, if there are children, the father gets one-sixth of the share. In Article 178 KHI the mother gets one-sixth part if there are children or two or more siblings. If there are no children or two brothers or more, then he gets one-third of the mother gets one-third of the remaining portion after being taken by the widow or widower when together with the father.

C. Customary Inheritance Law

In Indonesia, the kinship system is usually used to divide inheritance. The kinship system itself is divided into three categories: patrilineal, matrilineal, and parental or bilateral. Based on this classification, customary inheritance law affects the division of inheritance. The patrilineal kinship system draws the line from the father’s side. In this case, the position of men is more prominent than women in terms of inheritance distribution, so usually sons get more inheritance than daughters. Examples of regions that apply this kinship system in terms of customary inheritance law are Lampung, Nias, NTT, and others. Matrilineal is a kinship system that is drawn from the maternal line. This is, of course, the opposite of the patrilineal system, which makes the position of women more prominent than the position of the paternal line, so the distribution of inheritance also prioritizes daughters. Some areas that apply this kinship system in terms of customary inheritance law are Minangkabau, Enggano, and Timor. Furthermore, the parental or bilateral system is a kinship system that draws lineage from both sides, father and mother. In this kinship system, sons and daughters usually receive the same amount of inheritance, with no one being superior. Examples of areas that adhere to this system are East Sumatra, South Sumatra, Riau, and Kalimantan.

Benefits of PKM Implementation

The community was enthusiastic in the presentation of this material because the topic presented was closely related to everyday life. The community gained broad insights into inheritance from various positive legal perspectives in Indonesia. Then the community actively asks questions and often consults the PKM team to ask for legal solutions related to the inheritance problems they experience.

 

 

Volume 5 | No. 1 | Editor: Bagus Mulyawan

Author:
Ida Kurnia |
idah@fh.untar.ac.id | Lecturer of Faculty of Law Universitas Tarumanagara
Rizqy Dini Fernandha | rizqy.205210197@stu.untar.ac.id | Student of Faculty of Law Universitas Tarumanagara
Filshella Goldwen | filshella.205210225@stu.untar.ac.id | Student of Faculty of Law Universitas Tarumanagara

 

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