Perbandingan pembagian warisan untuk janda menurut kitab undang-undang hukum perdata dan hukum waris islam

Oleh :
Eko Yuni Restiana - E0005155 - Fak. Hukum

ABSTRACT This research aim to find out the comparison of legacy sharing for the widow according to KUHPerdata and Islamic Legacy Law encompassing the widow position as the beneficiary, the legacy sharing for widow, as well as the similarity and difference of legacy sharing for widow according to KUHPerdata and Islamic Legacy Law. This study is a normative research that is descriptive in nature. The research used statue and conceptual approaches. The type of data employed was secondary one including primary, secondary and tertiary law materials. Technique of collecting data used was documentary study with content analysis technique. The result of research and discussion shows that the legacy sharing for the widow according KUHPerdata uses the Book II of KUHPerdata about object and according to Islamic Legacy Law uses the provision of Holy Qur’an included in the Book II of Kompilasi Hukum Islam about the Legacy. The position of widow as the beneficiary according to KUHPerdata belongs to ab-intestato Class I beneficiary inheriting based on the prominence and closing other classes; according to the Islamic Legacy Law, widow as the beneficiary is caused by the marital relationship and widow belongs to the dzawil furudl constituting the prominence beneficiary so that it is not inhibited by other beneficiary. The legacy sharing for the widow according to KUHPerdata is equated with the share of a legitimate child, so that she/he inherits from head to head; according to Islamic Legacy Law the legacy share for widower is ½ of heritage property when the heir does not leave child and ¼ of heritage property when the heir leaves child, for widow is ¼ of heritage property when the heir does not leave child and 1/8 of heritage property when the heir leaves child. There is similarity and difference of legacy sharing for widow according to KUHPerdata and Islamic Legacy Law. The similarity is that the widow has the position as the beneficiary based on prominence and the widow has the right of ½ of joint property out of the heritage property. Meanwhile the difference includes the position of widow as the beneficiary when the heir does not leave child, according to KUHPerdata the widow has the right of all of the heritage properties, according to Islamic Legacy Law, the widow inherits jointly with the heir’s parents and siblings; the amount of legacy share for widow, according to KUHPerdata the widow is equated with the share of a legitimate child from head to head, according to Islamic Legacy Law is of ½ or ¼ for the widower and ¼ or 1/8 for the widow; the legacy chare for widower and widow, according to KUHPerdata is not different for the amount of legacy share, according to Islamic Legacy Law, the widower gets the share twice more than the widow; the legacy share relates to the marital principle, according to KUHPerdata, the legacy sharing is for the widow only because of monogamy marital principle, according to Islamic Legacy Law, the monogamy marital principle can be deviated by the polygamy, so that the widow is beyond someone who receives ¼ or 1/8 of heritage property and is divided among those widows; the legacy chare for the second marriage, according to KUHPerdata cannot exceed the smallest share of a step child and is not higher than ¼ of heritage property, according to Islamic Legacy Law there is no difference of legacy share for the widow from the first marriage and other marriage.