One of the reforms of Islamic Inheritance Law as stipulated in Article 185 of the Compilations of Islamic Law (Kompilasi Hukum Islam/KHI) is that the inheritance rights of heirs who predecease the testator may be transferred to their surviving children. The provision governs as follows:
(1) The inheritance rights of heirs who pre-decease the testator may be transferred to their children, unless stated otherwise in Article 173.
(2) The portion transferred to the substitute heirs cannot exceed that which would have been received by the original heir. This inheritance law reform is aiming at providing solutions to problems and preventing disputes. In this regard, Soepomo in his book says that the provision on substitute heirs is been based on the premise that family property is meant to provide for the family and the heirs. When a child dies before their parents, the children of the predeceased can replace the
rights to inherit their grandparent’s property.
However, according to Syahrizal, a law lecturer at IAIN University states that the substitute heirs can only be entitled to 1/3 of the portion of inheritance that their parent would have received. Reforms on inheritance law in other countries such as Egypt, Tunisia and Pakistan on the other hand, may allow grandchildren to receive the full portion of inheritance that their predeceased parent would have received (the law regarding inheritance from pre-deceased grandmothers is not positively stated). However, the Fiqhs (the science of deducing Islamic law) on Faraidh (inheritance), especially classical fiqhs, do not have provisions on such substitute heirs, except in determining the portion of the heirs that fall into the dzawil arham (kinship by blood) category according to the
madzhab (Sunni legal school) of Ahlut Tanzil in the absence of dzawil furud (Qur’anic) and ashabah (residual) heirs.
Before going into further detail, this article will discuss the meaning of transfers of inheritance rights from a number of perspectives. In Dutch law, transfer or substitution of inheritance rights is known as plaatsvervulling. Substitution refers to the substitute heirs, where a benefactor dies, leaving behind grandchildren with predeceased parent(s). The grandchildren will substitute their parent(s) rights to inherit the deceased grandparent’s property. The portion of the inheritance is the same as that which would have been received by their parent(s).
According to Alyasa’ Abubakar, a lecturer at the Post-graduate programme of the Ar-Raniry Islamic Public Institute (Institut Agama Islam Negeri/IAIN) in Banda Aceh, the concept of substitute heirs are only recognized under the Burgerlijke Wetboek (BW) law of inheritance from the West and under the customary law, but not under the Islamic law. However, reform in the interpretation of inheritance law has led to the incorporation of provisions on substitute heirs into the KHI, which to date have been used by the Mahkamah Syar’iyah (Islamic Court) in solving disputes.
Syahrizal, in his dissertation on the Substitution of Heirs according to Islamic Law writes that that classical fiqh in fact allows the transfer of a portion of inheritance to grandchildren, but under different circumstances than that found under the customary law. In his dissertation, Syahrizal further quotes a professor in Law, Ismuha, who explains that the fiqh recognises the concept of substitute heirs with a different form of substitution than that recognised by the customary law. In addition, the rights of the substitute heirs are not the same with those of the original heirs, as indicated in examples given in Khulasah Ilmu Faraidh by Amin al-Asyi and Nihayat al-Muhtaj by ar-Ramly.
In the Book of Nihayat al-Muhtaj, ar-Ramly notes down that a son can replace his predeceased father to inherit from his grandparent, while it is not the case with children of a predeceased daughter. The children of a predeceased benefactor’s son can replace their parent in the absence of another surviving benefactor’s son. However, if the benefactor still has surviving son(s), the substitute heir will not be entitled to any inheritance.
In addition, says Syahrizal, the only scholar who recognises the concept of substitute heirs in Islam is Hazairin. In fact, Hazairin’s views have encouraged other scholars in Islamic law as well as other legal scholars to carry out in-depth studies on this issue.
Hazairin provides an interpretation of the substitute heirs according to Islamic law based on Verse 33 of the Surah an-Nisa, which says: “And for everyone we have placed heirs (to inherit) of what parents and near relatives leave, and as for those with whom your right hands have made a covenant, give them their portion; verily Allah is ever witness over all things.” Hazairin freely interprets that this verse means that God allows anyone from the family concerned to become the mawali (someone who has the right to part of the inheritance), to inherit property of the parent and close relatives (allazina ‘aqadat aymanukum).
Anyone who is close with the person who died (Fulan) but is not a direct inheritor (ahli waris) can still benefit from the inheritance. According to Hazairin, when a parent (mother or father) becomes a benefactor, their children or the mawali of the children can inherit their parent’s property. If the children are still alive, they will be the ones to legally inherit the property in accordance with Verse 11 of Sura An-Nisa.
In Indonesia, especially in Aceh where customary law is so heavily embedded with Islamic law, this concept is still debated. Some ulamas (Islamic scholars), including those in Aceh, are still opposed to this very idea of reform by KHI because the concept of substitute heirs is not clearly found in the Qur’an and the Hadith of Mohammad the Prophet on faraidh (inheritance) law. However, some who accept the concept of the reform are basing their acceptance to the significant values that Islam brings, namely justice, ukhuwah (Islamic brother/sisterhood), equality, and highest respect to orphans, which they believe should be upheld and enforced in Indonesia.
However says Syahrizal, while Acehnese customary law does not recognise the concept of substitution of heirs, there are many practices where heirs distribute a little or some of their property to the orphans, whose parents are already predeceased.
Patah Titi or Putoh Tutu
The Vice Chairperson of the Consultative Council of Ulama (Majelis Permusyawaratan Ulama/MPU) Aceh, Tgk. Daud Zamzami, explains that there is no firm reason to terpret
further the concept of substitute heirs if there is not any clear provisions in the Quran. In addition, the customary law in Aceh does not recognise the concept of substitute heirs. Aceh holds strictly to its customary law, which is heavily embedded with Islamic law. Customary law in Aceh provides that when an heir dies, it severs the inheritance relationship between benefactor (or the parent of the deceased) with the children of the deceased (or the grandchildren of the benefactor). The inheritance rights of the grandchildren will be completely severed with the existence of male and female siblings of the deceased. This concept, according to Tgk. Daud Zamzami, is known as Patah Titi or Putoh Tutu among Acehnese, or Hijab in Islam. According to this concept, the deceased heir is the titi (bridge) between the
grandfather (benefactor) and the grandchildren. When the heirs predecease the benefactor, that lineage of inheritance is severed.
However, Islam still upholds respect for the welfare and justice of the grandchildren or the orphans left by their parents, for example by providing a little or some of the portion of inheritance to them. In addition, according to Acehnese customary law, the ulama who bears witness in the distribution of the property will also be provided with a small portion of the property. The right of the ulama to have this portion is known as the raheung right. It should be noted that the distribution of the portion to the grandchildren (or the orphans of the deceased) and the ulama is not considered a distribution of inheritance but merely a provision of gift.
Some ulamas in Aceh are still adhering to the concept of patah titi in terms of inheritance based on the classic fiqh books. Therefore, it is not uncommon that disputes on inheritance related to substitution of heirs in Aceh are rarely resolved using formal mechanism at the Mahkamah Syar’iyah.
Until now, patah titi is still a common practice in Aceh. Cases related to patah titi are usually resolved using adat (customary) and Islamic law by assembling village elders, ulamas and the surviving relatives. That is why there are only a few cases which are resolved at the Religious Court or Mahkamah Syar’iyah. During 2007 Mahkamah Syar’iyah of Aceh Province resolved 125 cases on inheritance and 292 cases on appointment of heirs (not appointment of heirs substitute). However, in cases related to patah titi, Mahkamah Syar’iyah will enforce Article 185 of the KHI in the resolution, namely by not recognising patah titi and therefore recognising the right of grandchildren to substitute the inheritance rights previously held by their predeceased parent.
The few numbers of cases on substitute heirs at the Mahkamah Syar’iyah is attributable to the lack of socialisation on substitution of heirs says Syahrizal. In practice, substitution of heirs is a great reform in Islamic law in Indonesia. If this reform is disseminated well, the concept of patah titi will hopefully no longer be applicable among the Acehnese.
in addition, there is a general lack of awareness regarding this concept and related cases among the community. Daud Zamzami says that the community are not fully aware of the provisions within the Compilations of Islamic Law (KHI) and do not really understand the teachings of the books of fiqh. The Community usually simply refer to their teachers (which in this case are the ulamas) to solve their problems.
(1) The inheritance rights of heirs who pre-decease the testator may be transferred to their children, unless stated otherwise in Article 173.
(2) The portion transferred to the substitute heirs cannot exceed that which would have been received by the original heir. This inheritance law reform is aiming at providing solutions to problems and preventing disputes. In this regard, Soepomo in his book says that the provision on substitute heirs is been based on the premise that family property is meant to provide for the family and the heirs. When a child dies before their parents, the children of the predeceased can replace the
rights to inherit their grandparent’s property.
However, according to Syahrizal, a law lecturer at IAIN University states that the substitute heirs can only be entitled to 1/3 of the portion of inheritance that their parent would have received. Reforms on inheritance law in other countries such as Egypt, Tunisia and Pakistan on the other hand, may allow grandchildren to receive the full portion of inheritance that their predeceased parent would have received (the law regarding inheritance from pre-deceased grandmothers is not positively stated). However, the Fiqhs (the science of deducing Islamic law) on Faraidh (inheritance), especially classical fiqhs, do not have provisions on such substitute heirs, except in determining the portion of the heirs that fall into the dzawil arham (kinship by blood) category according to the
madzhab (Sunni legal school) of Ahlut Tanzil in the absence of dzawil furud (Qur’anic) and ashabah (residual) heirs.
Before going into further detail, this article will discuss the meaning of transfers of inheritance rights from a number of perspectives. In Dutch law, transfer or substitution of inheritance rights is known as plaatsvervulling. Substitution refers to the substitute heirs, where a benefactor dies, leaving behind grandchildren with predeceased parent(s). The grandchildren will substitute their parent(s) rights to inherit the deceased grandparent’s property. The portion of the inheritance is the same as that which would have been received by their parent(s).
According to Alyasa’ Abubakar, a lecturer at the Post-graduate programme of the Ar-Raniry Islamic Public Institute (Institut Agama Islam Negeri/IAIN) in Banda Aceh, the concept of substitute heirs are only recognized under the Burgerlijke Wetboek (BW) law of inheritance from the West and under the customary law, but not under the Islamic law. However, reform in the interpretation of inheritance law has led to the incorporation of provisions on substitute heirs into the KHI, which to date have been used by the Mahkamah Syar’iyah (Islamic Court) in solving disputes.
Syahrizal, in his dissertation on the Substitution of Heirs according to Islamic Law writes that that classical fiqh in fact allows the transfer of a portion of inheritance to grandchildren, but under different circumstances than that found under the customary law. In his dissertation, Syahrizal further quotes a professor in Law, Ismuha, who explains that the fiqh recognises the concept of substitute heirs with a different form of substitution than that recognised by the customary law. In addition, the rights of the substitute heirs are not the same with those of the original heirs, as indicated in examples given in Khulasah Ilmu Faraidh by Amin al-Asyi and Nihayat al-Muhtaj by ar-Ramly.
In the Book of Nihayat al-Muhtaj, ar-Ramly notes down that a son can replace his predeceased father to inherit from his grandparent, while it is not the case with children of a predeceased daughter. The children of a predeceased benefactor’s son can replace their parent in the absence of another surviving benefactor’s son. However, if the benefactor still has surviving son(s), the substitute heir will not be entitled to any inheritance.
In addition, says Syahrizal, the only scholar who recognises the concept of substitute heirs in Islam is Hazairin. In fact, Hazairin’s views have encouraged other scholars in Islamic law as well as other legal scholars to carry out in-depth studies on this issue.
Hazairin provides an interpretation of the substitute heirs according to Islamic law based on Verse 33 of the Surah an-Nisa, which says: “And for everyone we have placed heirs (to inherit) of what parents and near relatives leave, and as for those with whom your right hands have made a covenant, give them their portion; verily Allah is ever witness over all things.” Hazairin freely interprets that this verse means that God allows anyone from the family concerned to become the mawali (someone who has the right to part of the inheritance), to inherit property of the parent and close relatives (allazina ‘aqadat aymanukum).
Anyone who is close with the person who died (Fulan) but is not a direct inheritor (ahli waris) can still benefit from the inheritance. According to Hazairin, when a parent (mother or father) becomes a benefactor, their children or the mawali of the children can inherit their parent’s property. If the children are still alive, they will be the ones to legally inherit the property in accordance with Verse 11 of Sura An-Nisa.
In Indonesia, especially in Aceh where customary law is so heavily embedded with Islamic law, this concept is still debated. Some ulamas (Islamic scholars), including those in Aceh, are still opposed to this very idea of reform by KHI because the concept of substitute heirs is not clearly found in the Qur’an and the Hadith of Mohammad the Prophet on faraidh (inheritance) law. However, some who accept the concept of the reform are basing their acceptance to the significant values that Islam brings, namely justice, ukhuwah (Islamic brother/sisterhood), equality, and highest respect to orphans, which they believe should be upheld and enforced in Indonesia.
However says Syahrizal, while Acehnese customary law does not recognise the concept of substitution of heirs, there are many practices where heirs distribute a little or some of their property to the orphans, whose parents are already predeceased.
Patah Titi or Putoh Tutu
The Vice Chairperson of the Consultative Council of Ulama (Majelis Permusyawaratan Ulama/MPU) Aceh, Tgk. Daud Zamzami, explains that there is no firm reason to terpret
further the concept of substitute heirs if there is not any clear provisions in the Quran. In addition, the customary law in Aceh does not recognise the concept of substitute heirs. Aceh holds strictly to its customary law, which is heavily embedded with Islamic law. Customary law in Aceh provides that when an heir dies, it severs the inheritance relationship between benefactor (or the parent of the deceased) with the children of the deceased (or the grandchildren of the benefactor). The inheritance rights of the grandchildren will be completely severed with the existence of male and female siblings of the deceased. This concept, according to Tgk. Daud Zamzami, is known as Patah Titi or Putoh Tutu among Acehnese, or Hijab in Islam. According to this concept, the deceased heir is the titi (bridge) between the
grandfather (benefactor) and the grandchildren. When the heirs predecease the benefactor, that lineage of inheritance is severed.
However, Islam still upholds respect for the welfare and justice of the grandchildren or the orphans left by their parents, for example by providing a little or some of the portion of inheritance to them. In addition, according to Acehnese customary law, the ulama who bears witness in the distribution of the property will also be provided with a small portion of the property. The right of the ulama to have this portion is known as the raheung right. It should be noted that the distribution of the portion to the grandchildren (or the orphans of the deceased) and the ulama is not considered a distribution of inheritance but merely a provision of gift.
Some ulamas in Aceh are still adhering to the concept of patah titi in terms of inheritance based on the classic fiqh books. Therefore, it is not uncommon that disputes on inheritance related to substitution of heirs in Aceh are rarely resolved using formal mechanism at the Mahkamah Syar’iyah.
Until now, patah titi is still a common practice in Aceh. Cases related to patah titi are usually resolved using adat (customary) and Islamic law by assembling village elders, ulamas and the surviving relatives. That is why there are only a few cases which are resolved at the Religious Court or Mahkamah Syar’iyah. During 2007 Mahkamah Syar’iyah of Aceh Province resolved 125 cases on inheritance and 292 cases on appointment of heirs (not appointment of heirs substitute). However, in cases related to patah titi, Mahkamah Syar’iyah will enforce Article 185 of the KHI in the resolution, namely by not recognising patah titi and therefore recognising the right of grandchildren to substitute the inheritance rights previously held by their predeceased parent.
The few numbers of cases on substitute heirs at the Mahkamah Syar’iyah is attributable to the lack of socialisation on substitution of heirs says Syahrizal. In practice, substitution of heirs is a great reform in Islamic law in Indonesia. If this reform is disseminated well, the concept of patah titi will hopefully no longer be applicable among the Acehnese.
in addition, there is a general lack of awareness regarding this concept and related cases among the community. Daud Zamzami says that the community are not fully aware of the provisions within the Compilations of Islamic Law (KHI) and do not really understand the teachings of the books of fiqh. The Community usually simply refer to their teachers (which in this case are the ulamas) to solve their problems.
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