The Widow's right to inherit

Gradual development appears to be present in the decisions of the Supreme Court on the rights of widows. Concerning the property of the husband, some decisions gave the widow the full rights to inherit both the marital property and the separate property owned by the husband.

The position of a widow, especially one with offspring from her deceased husband, is acknowledged by the Supreme Court. An example is the following case between a widow and the siblings of her deceased husband. It concerned a case from Sumedang, West Java, between Ms Usih, a widow of a deceased husband named Mr Sapan, who died in 1999. They had only one son, Momo, who was mentally impaired and passed away in 2000, one year after the death of the father. Ms Usih then remarried. The siblings of Mr Sapan filed a case before the court, arguing that Ms Usih did not have any rights to the inheritance because of her new status as a wife of another man. More specifically, they argued she did not have rights to what had passed to her as an inheritor of what her son Momo had inherited from his father. In 2003, the Supreme Court decided that Ms Usih was effectively an heir of her son Momo, no matter whether he had been disabled or not. When the child dies, his mother will become his heir. The decedent’s siblings, therefore, had no right over the inheritance.

The gradual development of the Supreme Court’s decisions tends to further promote widow’s rights, but there are exceptions. One decision ruled that the entire estate was to be divided among the children, without giving any right to the surviving widow. In one other case, the widow likewise did not inherit anything.

In a polygamous marriage, jurisprudence from Lev’s period of study from 1950-1960 pointed out that a wife or a widow is not entitled to the marital property from a marriage other than her own. She is not entitled to the separate property brought by her husband to his previous/ first marriage with another woman. It seems that this jurisprudence still stands, but with an exception. We found a case from Magetan, East Java, in which in 2000, the Supreme Court recognised the right of the second wife and the fourth wife to inherit property from their husband. The share of the widow in a polygamous marriage was decided to be one- third of all of the relevant marital property acquired during the marriage of the husband with these second and fourth wives. A similar decision was made in a case from Lumajang, East Java, in 2005.

Inheritance law is also connected to divorce. In one case, a divorced woman became involved in an inheritance dispute after her ex-husband died, with the children of her husband from yet a previous marriage. In 2005, the Supreme Court decided that the divorcee’s inheritance right is limited to the marital property acquired during the period of marriage. She is not entitled to any share of her husband’s separate property, which should belong to the first wife and the children of the first marriage.

What is the perspective of the Islamic court about the right of widows? According to the Compilation of Islamic law, both widows and widowers have the right to acquire an equal part of the inheritance. Each surviving spouse is entitled to one-eighth of the estate left by the decedent. There are cases in which the wife received one-eighth as a fixed proportion, regardless of the number of children. In addition, her position as an heir with an entitlement to half of the marital property is strictly enforced by the Islamic court. The settlement, according to the Compilation of Islamic law, recognises the wife’s right as the owner of half of the marital property in a divorce, which is also in line with Law No.

This can be illustrated by a case in Nanggroe Aceh Darussalam. A rich man, Zam Zam Ali, died in 1997, leaving a wife (Nyak Dien), two daughters and one son. The son, named Muhammad Zami, usurped all the belongings of his father. His mother and sisters filed suit before the Islamic Court, which decided to divide the property in two phases. First, the marital property was divided in two, with half for Zam Zam Ali and the rest half for Nyak Dien. Secondly, Zam Zam Ali’s separate property was added to his share. From this second share, Nyak Dien got one- eighth, and the remaining seven-eighths were divided among the three children. Muhammad Zami received twice the share of each sister. This decision was confirmed by the Supreme Court in 2008.

In sum, as far as the right of the widow is concerned, both the civil and the Islamic court recognise the right of the widow to inherit from her deceased husband. The inheritance right of the widow includes half of the marital property and a share of the separate property.