The third distinctive difference: the KHI makes a bequest obligatory for a party who does not inherit but has a caregiving relationship — chiefly the adopted child and the adoptive parent.
Background: an adopted child does not inherit
In both classical fiqh and the KHI, adoption does not transfer lineage (nasab). An adopted child remains the child of their biological parents, and is not an heir of their adoptive parents (in line with QS al-Ahzab 33:4-5). Up to this point, the classical view and the KHI agree.
The problem: in practice, many adopted children are raised from a young age, spending their whole lives with the adoptive parents, and then receive nothing when an adoptive parent dies. The KHI answers this with wasiat wajibah (the obligatory bequest).
What Pasal 209 says
- Paragraph (1): The estate of an adopted child is divided under Pasal 176 through 193; the adoptive parents who do not receive a bequest are given a wasiat wajibah of at most 1/3 of the adopted child’s inheritance.
- Paragraph (2): The adopted child who does not receive a bequest is given a wasiat wajibah of at most 1/3 of the adoptive parents’ inheritance.
“Wasiat wajibah” means a bequest that is deemed to exist and must be carried out, even though the deceased did not actually make one, because the state establishes it for the sake of justice in the caregiving relationship.
flowchart TB
classDef wajib fill:#713f12,stroke:#ca8a04,color:#fef9c3
classDef waris fill:#134e4a,stroke:#14b8a6,color:#ccfbf1
classDef out fill:#1e3a8a,stroke:#3b82f6,color:#dbeafe
T["The deceased's property"]:::waris --> W["Wasiat wajibah (max 1/3) for the adopted child/adoptive parent"]:::wajib
T --> S["Remainder (min 2/3)"]:::waris
S --> H["Divided among heirs by lineage/marriage (furudh)"]:::out
W -.-> N["Taken FIRST from the property, before the inheritance is divided"]:::wajib
How it works
- Establish the whole of the deceased’s property (after harta bersama & debts).
- Set aside the wasiat wajibah for the adopted child/adoptive parent, at most 1/3 (the amount is set by the judge according to what is fitting; it need not be the full 1/3).
- The remaining property is then divided among the lawful heirs (by lineage & marriage) according to the furudh.
The 1/3 cap is in line with the general limit on bequests (a bequest may not exceed one third without the heirs’ consent, following the hadith of Sa’d bin Abi Waqqash).
Extension through jurisprudence
Over time, the Mahkamah Agung has extended the application of wasiat wajibah — among other things to non-Muslim heirs in certain cases (for example, a child of a different religion from the deceased), as a middle way so they still obtain a share even though barred from inheriting. This extension is not explicitly stated in the text of Pasal 209 and is a matter of debated judicial ijtihad.
Difference from the classical view
- Classical: a bequest is recommended/permissible (sunnah/mubah) and voluntary; there is no state obligation to give a share to an adopted child. If the deceased made no bequest, the adopted child receives nothing from that property (except a gift made during life).
- KHI: makes it obligatory and automatic (up to 1/3), carried out by the judge even without an actual bequest.
The concept of “wasiat wajibah” itself has roots among some scholars (for example, its application to orphaned grandchildren in several Muslim countries), so it is not entirely without precedent — but its form and scope in the KHI are a choice of Indonesian ijtihad.
Sources: KHI Pasal 209; studies on wasiat wajibah for adopted children (Pasal 209 KHI); MA rulings concerning non-Muslim heirs. Details in chapter 12.