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Indonesian Law (KHI)

06 — Substitute Heirs (Pasal 185)

▸ Chapters
  1. 01 — Why the KHI Path Exists
  2. 02 — What the KHI Is and Its Legal Status
  3. 03 — The Inheritance Framework and Impediments
  4. 04 — Marital Property Is Separated Before Inheritance
  5. 05 — Heirs and Their Shares
  6. 06 — Substitute Heirs (Pasal 185)
  7. 07 — Wasiat Wajibah (Pasal 209)
  8. 08 — KHI vs Classical Fiqh: A Comparison
  9. 09 — Case Studies
  10. 10 — Evaluation and Recommendation
  11. 11 — Glossary
  12. 12 — References
▸ On this page

This is the most distinctive and most debated difference between the KHI and classical fiqh. This chapter explains the rule, how it works, and why it has become a point of dispute.

What Pasal 185 says

  • Paragraph (1): An heir who dies before the deceased has their position taken by their child, except for those named in Pasal 173 (blocked).
  • Paragraph (2): A substitute heir’s share may not exceed the share of the heir who is of the same degree as the one being replaced.

In other words: if a child dies before their parent (the deceased), then the grandchild (the child of that deceased child) rises to take the place of their father/mother in receiving inheritance from their grandparent.

Illustration

flowchart TB
  classDef dead fill:#7f1d1d,stroke:#ef4444,color:#fee2e2
  classDef alive fill:#134e4a,stroke:#14b8a6,color:#ccfbf1
  classDef repl fill:#1e3a8a,stroke:#3b82f6,color:#dbeafe

  P["Deceased (Grandfather), died"]:::alive
  A1["Child A — died EARLIER"]:::dead
  A2["Child B — living"]:::alive
  C1["Grandchild (child of A)"]:::repl
  P --> A1
  P --> A2
  A1 --> C1
  C1 -. "takes A's position (Pasal 185)" .-> P

Without Pasal 185 (that is, under the classical rule), the grandchild from child A is excluded (mahjub) as long as child B is still living, because a child blocks a grandchild. Child B takes the whole child’s share. With Pasal 185, the grandchild rises to their father’s position, and so shares in the inheritance as if their father were still alive.

The share cap (paragraph 2)

Paragraph (2) prevents the substitute grandchild from receiving more than is reasonable: their share may not exceed the share of the heir who is of the same degree as the person being replaced. So if child B (the living one) receives X, then the combined share of the substitute grandchildren from child A is capped so as not to exceed X. In practice, the application of this paragraph (2) is itself still a matter of discussion among judges and academics.

A simple worked example

The deceased (grandfather) dies, with an estate (tirkah) of Rp 600 juta. He has two children: Child B (living) and Child A (died earlier, leaving 1 grandchild). Assume there are no other heirs.

Under the KHI (with substitution):

  • The “child” position is split into two lines: Child B and (replacing Child A) the grandchild.
  • If both are male: Rp 600 juta divided between the two positions = Child B Rp 300 juta, Grandchild Rp 300 juta (capped so as not to exceed the same-degree share, here equal).

Under the classical view (no substitution):

  • The grandchild is excluded by Child B. Child B takes the whole Rp 600 juta; the grandchild receives nothing through inheritance (the grandfather could of course give via a gift/bequest, but that is not inheritance).

This gap is not merely a number: it concerns the principle of who is entitled.

Why it became a point of dispute

  • The supporting argument (Indonesian ijtihad): it closes off a sense of social injustice — an orphaned grandchild whose father died first does not “lose” the grandfather’s inheritance merely because a living uncle exists. Some link it to the spirit of QS an-Nisa 4:8-9 (attending to weak relatives) and to the idea of wasiat wajibah.
  • The opposing argument (the majority of classical fiqh): the faraidh system already establishes that the nearer blocks the farther; a grandchild is not an heir while a child exists. Forcing a substitution is seen as departing from the well-grounded rule of hajb. For the case of the orphaned grandchild, the more appropriate route in their view is wasiat wajibah (granting a certain portion), not making the grandchild a full heir.

For this reason, the substitute heir is the clearest example where state law takes a path that many scholars do not agree on. This bundle presents the rule honestly, and lays out the debate openly in chapter 10.

Note: this site does not issue a fatwa on which view is correct. For a real case, ask the Ahlussunnah scholars/masyayikh for the religious side, and the Pengadilan Agama for the legal side.

Sources: KHI Pasal 185; Ditjen Badilag Mahkamah Agung article on substitute heirs; Islamic family-law journals on Pasal 185. Details in chapter 12.