YENI SALMA BARLINTI ISLAMIC INHERITANCE LAW PRINCIPLES OF

YENI SALMA BARLINTI ISLAMIC INHERITANCE LAW

PRINCIPLES OF ISLAMIC INHERITANCE LAW 1. 2. 3. 4. 5. 6. Bilateral male and female have rights to inherit from their parents and relatives through male and female lines Ijbari the Islamic inheritance law prevails automatically because of death. Allah determines the law for human (muslim must obey the devine law). Death inheritance law is applied if there is a death Individual male and female get legacy (estate) as an individual, and it belongs to individual 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 Islamic personality Islamic inheritance law is only for muslim: the deceased and heirs

SYSTEMS OF ISLAMIC INHERITANCE IN INDONESIA 1. System of Bilateral Hazairin Islamic inheritance law is available for male and female through male and female lines 2. System of Patrilineal Syafi’i Islamic 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. 2. 3. Muwaris the deceased Waris heir(s) Maurus estate

TERMS/REQUIREMENTS OF ISLAMIC INHERITANCE 1. 2. 3. 4. The deceased muslim The survival of heir(s) muslim Estate / legacy Relationship between the deceased and heir(s) 1. Cognation 2. Relations by marriage 5. The heirs have no hindrance/obstacle different religion, kill the deceased

CLASSIFICATION OF HEIRS Bilateral-Hazairin 1. Zul fara’id 2. Zul qarabat 3. Mawali Patrilineal-Syafi’i 1. Zul fara’id 2. Ashabah: ashabah binnafsihi, ashabah bilghairi, and ashabah maal ghairi 3. Zul arham

Cont’d �Compilation of Islamic Law 1. Zul farai’id 2. Ashabah 3. Substitute Heirs

Zul Fara’id �Heir who has certain share in certain condition 1. 2. 3. 4. 5. 6. 7. Daughter (without son) Mother Father, if the deceased has child (children) Husband Wife Brother and sister who are sharing Sister, if the deceased is kalalah.

Zul Qarabat �Heir has uncertain share 1. Son 2. Daughter, if the deceased has son 3. Father, if the deceased has no child (children) 4. Brother, if the deceased is kalalah 5. 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) brother b. 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 � 1 st Primary Group 1. Children 2. Husband/wife 3. Father and or mother � 2 nd Primary Group 1. Brother and or sister 2. Husband/wife 3. Father and or mother

Cont’d � 3 rd Primary Group 1. Husband/wife 2. Father 3. Mother � 4 th Primary Group 1. Husband/wife 2. 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 patrilineal If the deceased has left no son, son of son or through male’s descent line, and father According to KHI If 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 QS An Nisa : 12 QS An Nisa : 176 HAZAIRIN If father is alive SHAFI’I For uterine If father had * For full-sister died before and brother the deceased * For consanguine

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