Samarah: Jurnal Hukum Keluarga dan Hukum Islam Volume 9 No.
November 2025 ISSN: 2549 Ae 3132.
E-ISSN: 2549 Ae 3167 DOI: 10.
22373/sjhk.
Pre-Death Property Distribution among Muslims in Cirebon: An Islamic Law and Legal System Perspective Edy Setyawan Universitas Islam Negeri Siber Syekh Nurjati Cirebon.
Indonesia Ahmad Alamuddin Yasin Sekolah Tinggi Ilmu Tarbiyah Buntet Pesantren Cirebon.
Indonesia Achmad Samil Himam Universitas Islam Negeri Siber Syekh Nurjati Cirebon.
Indonesia Email: edysetyawan@syekhnurjati.
Abstract: The main problem addressed in this study is the practice of pre-death property distribution that has developed among Muslim communities in Cirebon, particularly regarding the underlying reasons for its implementation, the heirsAo perceptions of the practice, and its implications for property ownership concepts under Islamic law and the broader legal system.
This study aims to analyze the patterns of pre-death property distribution, the views of heirs toward this practice, and its impact within the framework of Islamic law and other legal systems.
This research employs a qualitative method with a case study approach, focusing on families within the Muslim community of Cirebon.
The analysis is conducted using Lawrence M.
FriedmanAos legal system theory, which encompasses legal structure, legal substance, and legal culture.
The findings indicate that, in terms of legal structure within the family, the property owner plays a central role in determining and distributing assets to heirs based on prevailing local traditions.
From the perspective of legal substance, this practice is understood by the community as inheritance distribution, although under Islamic law it is more appropriately classified as a form of hibah .
nter vivos gif.
or grant.
Regarding legal culture, pre-death property distribution is influenced by various social factors, particularly the intention to prevent conflicts and disputes among heirs after the death of their parents.
Therefore, although this practice does not constitute inheritance distribution in the normative sense of Islamic law, pre-death property distribution is perceived as a preventive solution to maintain family harmony and avoid property disputes among Muslim communities in Cirebon.
Keywords: Pre-Death Property Distribution.
Legal System.
Islamic Law ic Submitted: October 27, 2024 ic Accepted: December 31, 2025 http://jurnal.
ar-raniry.
id/index.
php/samarah icPublished: December 31, 2025 Pre-Death Property Distribution among Muslims in Cirebon Edy Setyawan, et.
DOI: 10.
22373/sjhk.
Abstrak: Permasalahan dalam penelitian ini adalah praktik pembagian harta pra-kematian yang berkembang di kalangan masyarakat Muslim Cirebon, khususnya terkait dasar pertimbangan pelaksanaannya, penerimaan ahli waris, serta implikasinya terhadap konsep kepemilikan harta menurut hukum Islam dan sistem hukum yang berlaku.
Penelitian ini bertujuan untuk menganalisis pola pembagian harta pra-kematian, pandangan para ahli waris terhadap praktik tersebut, serta dampaknya dalam kerangka hukum Islam dan sistem hukum Metode yang digunakan adalah penelitian kualitatif dengan pendekatan studi kasus, yang difokuskan pada keluarga masyarakat Muslim di Cirebon.
Analisis penelitian ini menggunakan perspektif legal system Lawrence M.
Friedman yang meliputi struktur hukum, substansi hukum, dan budaya hukum.
Hasil penelitian menunjukkan bahwa dalam struktur hukum keluarga, pemilik harta memiliki peran sentral dalam menentukan pembagian dan penyerahan harta kepada ahli waris berdasarkan tradisi yang hidup di masyarakat.
Dari aspek substansi hukum, praktik pembagian tersebut dipahami sebagai pembagian harta waris, meskipun dalam perspektif hukum Islam lebih tepat dikategorikan sebagai hibah atau hadiah.
Adapun dari aspek budaya hukum, praktik pembagian harta pra-kematian dipengaruhi oleh berbagai faktor sosial, terutama keinginan untuk mencegah konflik dan perselisihan di antara ahli waris setelah orang tua meninggal dunia.
Meskipun secara normatif tidak termasuk dalam pembagian waris menurut hukum Islam, pembagian harta pra-kematian dipandang sebagai solusi preventif untuk menjaga keharmonisan keluarga dan menghindari sengketa harta di kalangan masyarakat Muslim Cirebon.
Kata Kunci: Pembagian Harta Pra-Kematian.
Legal System.
Hukum Islam Introduction In law, each individual has the right to ownership 1, whether it pertains to property or other forms of ownership.
Legal protections for property ownership are clearly stated both in legislative regulations and religious norms 2.
The phenomenon of property ownership continues to be a relevant and evolving issue A E Setyowati and T Tanudjaja.
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alongside social interactions.
In Islam, ownership of property can be established in various ways, such as through sales, gifts, charitable donations, or inheritance.
From a historical perspective, the division of assets, whether inheritance or other forms, is an ever-evolving issue, often linked to conflicts and other concerns, such as the inheritance of power or office, which is currently a topic of wide discussion.
3 Thus, public perceptions of the term "inheritance" can convey a broad meaning, often referring to the transfer of property or possessions to heirs after the original owner can no longer hold them, for various reasons.
SocietyAos interpretation of inheritance can extend to signify assets passed down by the deceased to relatives, or in some cases, it may resemble the concept of a gift, wherein a benefactor transfers their property to others while still alive.
This understanding is commonly seen when a younger sibling says they inherited an older siblingAos clothing.
4 During the pre-Islamic period, the inheritance system lacked the principle of justice and was based instead on Arab customs and traditions, often rooted in discrimination.
Women, for instance, were deemed unworthy of inheritance and were even considered part of the inheritance The ownership of slaves as inheritable property was also a component of Arab tradition at that time.
With the arrival of Islam, all such discriminatory practices were abolished based on humanitarian principles.
Women, who had previously been part of the inheritance, were now granted inheritance rights according to the Quranic The abolition of slavery was also promoted by Prophet Muhammad H Habiburrahman et al.
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at the outset of his mission.
In Islamic law, inheritance is limited to the transfer of property, not non-material aspects.
In Islam, inheritance entails the transfer of a benefactorAos assets to heirs based on portions predetermined by Islamic jurisprudence 7.
This transfer is conditioned by the benefactor's death, with the stipulation that the death must not result from the actions of the heir.
Furthermore, inheritance rights are restricted when heirs differ in religion from the benefactor.
Likewise, slavesAiwhether mudabbar, mukatab, or ummul walad cannot either inherit or bequeath property, as they lack ownership rights.
Therefore, no assets can be transferred to their heirs, and any inheritance received by a slave must go to their master.
For a partially emancipated slave .
ubaAoa.
, inheritance rights are proportional to their level of freedom, with the remainder going to their master 8.
In contemporary times, preliminary studies for this research have uncovered cases of asset division before death, which society sometimes equates with This indicates some public perception that inheritance can be owned prior to death, a view that contrasts with Islamic values, which stipulate that inheritance ownership is only permissible posthumously 9.
Relevant literature suggests that inheritance has long been recognized in Islam as the term for assets left by a deceased person.
Scholars have affirmed that inheritance cannot be divided before death 10.
Often, inheritance conflicts arise from misunderstandings, a situation that parents capable of mitigating sibling rivalry through fair distribution could potentially improve, as discussed in our study 11.
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In fact.
Zenrif and Mahmudi report in their article that pre-death asset transfer practices have been confirmed in various studies.
For instance, research in the village of Pahserut found that the majority of Muslims in the village, who are devout and adhere to the local scholars' rulings, distribute their inheritance as a bequeathed gift prior to the benefactor's death.
This practice is identified not as inheritance but as a bequeathed gift, distributed to heirs by mutual consent with the goal of averting future family conflicts.
From the above discussion, we conclude that inheritance only occurs However, in preliminary studies, it has been observed that some families distribute inheritance before the benefactorAos death, referring to it as Thus, this study aims to elucidate the actual practices of pre-death asset distribution, analyzing the controversies arising from shifts in public perception on inheritance and their implications for inheritance law in contemporary jurisprudence.
This research employs a case study approach to investigate the implementation of pre-death asset distribution within Muslim families, aiming to gain an in-depth understanding of how pre-death asset distribution is practiced and perceived.
The primary data sources in this study are families that actively engage in pre-death asset distribution practices.
Secondary data are also gathered through books and relevant literature on inheritance to provide a theoretical and contextual foundation for the research.
The data collection technique incorporates three main approaches.
First, non-participatory observation is used to objectively observe pre-death asset distribution practices in Muslim families without direct involvement in their Second, structured interviews are conducted to gain deeper insights from the perspectives of individuals or families involved in such practices.
Third, a literature review explores theoretical perspectives on pre-death inheritance within the Islamic context.
The data analysis process involves several stages.
First, data reduction is applied to identify patterns, findings, and key issues emerging from the collected data.
Data presentation then outlines the results of the interviews and observations that have been reduced.
Finally, conclusions are drawn to summarize findings regarding pre-death inheritance practices among Muslim families.
Structure of Pre-Death Inheritance Distribution Based on interviews with informants, we obtained information on pre-death inheritance distribution practices among the Muslim community in Cirebon Regency.
We refrain from disclosing the informants' identities to protect their Fauzan Zenrif and Zaenul Mahmudi.
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Upholding research ethics, we focus on the substance of the study rather than the identities of the informants to maintain their good name.
We conducted interviews with two families, each with more than three Both families believed that the pre-death inheritance distribution method they adopted helped minimize potential conflicts among heirs.
This approach arises from the diverse inheritance practices in Indonesia, where, despite the dominance of Islamic inheritance laws, people often incorporate customary inheritance, equal inheritance, or Islamic inheritance principles.
The informants mentioned that the heirs in their families have varied backgrounds, with some having academic backgrounds and others coming from Islamic boarding schools with strong Islamic values.
Consequently, the informants view the pre-death inheritance distribution as an alternative to mitigate future disputes.
Substance of Pre-Death Inheritance Distribution All informants practice customary inheritance within their families.
Typically, the inheritance shares are determined by the head of the familyAiin this case, the father, who allocates inheritance to his children.
Some informants reported that the family home is given to the youngest child under the condition that they care for the parents in times of illness.
In other families, deliberation among heirs determines the inheritance amount, especially for those who care for their parents.
In these cases, the home may be given to the eldest child to ensure their parents' care, and the remaining assets are divided equally.
The heirs receive land intended for future housing or the equivalent monetary value.
Another informant added that the family home is exclusively given to the youngest child.
Education expenses for one heir may impact the inheritance amount they receive, as parents may have sold land to fund their education, affecting the amount they would otherwise inherit.
Additionally, large, unforeseen expenses, such as weddings or housing construction, may influence inheritance distribution.
In such cases, funds given to one heir for these purposes may reduce their subsequent inheritance share.
All informants reported that the pre-death inheritance distribution is accepted amicably by the heirs, who appreciate their parentsAo fairness.
The standard of fairness in this context does not equate to equal distribution but rather the parents' decision-making, which is perceived as just.
One informant noted that wealthier heirs received less than those in need, aligning with the family's concept of justice.
Pre-Death Inheritance Distribution Culture Informants stated that heirs could claim ownership of their shares immediately after distribution, allowing them to manage and register the property even while the parents are still alive.
However, the parents requested that the land not be sold but used for housing.
Some informants allowed the land to be utilized as a garden or for other purposes before building a house.
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In some families, ownership of the family home was transferred to the youngest child upon the parent's death, even though all heirs were informed in Similarly, in families entrusting the home to the eldest child, a meeting among heirs was held after the parentAos death to determine the inheritance distribution, often involving one heir buying the others' shares to gain full Families that allocate land to the heir who accompanied the parents in their final years often substitute the land's value with an equivalent sum of money.
Conversely, the accompanying heir may add funds to acquire all of the parents' Some informants noted that not all parental assets are distributed in predeath inheritance.
only a significant portion is shared, while some assets, such as business land, remain undivided.
This business land, managed by a designated heir, generates income for the parents and is intended to be divided after the parents' death as per their wishes.
Contemporary Fiqh Analysis of Pre-Death Inheritance Distribution Upon an individual's death, all worldly assets, rights, and obligations are left behind, with priority given to covering burial expenses and any remaining The remaining assets constitute the inheritance, which is distributed to heirs based on prescribed shares.
In this context, inheritance is defined as an individual's assets after death, following the fulfillment of all obligations, to be distributed to living heirs.
Therefore, property transferred before death does not qualify as inheritance under Islamic inheritance law specifies rightful heirs and their respective shares.
Male children receive a preferential share and, in their presence, relatives such as siblings, uncles, and aunts are excluded from inheritance.
Males receive a double share compared to females13.
In reviewing the pre-death inheritance practices observed among these families, several points of contention arise from a contemporary fiqh perspective:
Timing and Conditions of Distribution The primary controversy in pre-death inheritance practices involves the timing of distribution, as inheritance should occur posthumously, only after burial M Arif Royyani.
AuShahadah AoIlmy.
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costs, debts, and other obligations are settled.
Additionally, the father, as the giver, often imposes conditions, such as prohibiting the sale of inherited land14.
The pre-death transfer of assets cannot be classified as inheritance but rather as a gift .
, as inheritance is defined as the assets of the deceased divided only after death.
From a fiqh perspective, these pre-death distributions qualify as hibah since hibah does not have conditional limitations nor posthumous Moreover, any conditions imposed, such as restrictions on selling, do not negate the hibah itself.
Distribution Percentages and Heir Designation The spontaneous distribution of pre-death inheritance disregards the Islamic prescription of shares, where male heirs receive twice as much as female heirs 16.
Additionally, land assets are distributed without accurate valuation, and heir eligibility remains uncertain since heirs could predecease the giver.
17 The hibah classification allows flexibility regarding specific heir shares, making it compatible with contemporary fiqh18.
As hibah, there is no requirement to strictly follow Islamic inheritance laws, and heirs can freely receive the hibah without post-death adjustments if an heir predeceases the giver.
Transparency of Education Expenses Another issue is the inclusion of education expenses in inheritance calculations, which were often unknown to heirs until they inquired.
While parents may fund one childAos education, affecting future inheritance shares, they may intend fairness in distribution.
Parents could clarify to heirs that these educational expenses are part of a hibah intended to promote equity among Tri Wahyu Hidayati.
Ulfah Susilawati, and Endang Sriani.
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Family-Owned Businesses Assigning business ownership to certain heirs creates unique challenges, as some heirs actively involved in the business may enjoy profits during the parents' However, this business remains a parental asset until death 19.
The classification of such businesses as hibah, inheritance, or will depends on the prior agreement between the parents and the assisting heirs, who might be regarded as either employees or partners20.
If categorized as hibah, the business need not be If it constitutes inheritance.
Islamic inheritance law applies, and nonparticipating heirs should approve any unequal share distribution.
Cultural Practice Regarding the Youngest Child Certain families customarily bequeath the family home to the youngest child who cared for the parents, a practice familiar within the community but contingent on the parentsAo death.
21 This arrangement could qualify as either a will .
with conditions or inheritance followed by hibah.
If it is a will, it must not exceed one-third of the total assets unless approved by other heirs.
Otherwise, the house is considered part of the inheritance, and the youngest child can purchase the shares from unwilling heirs, while those willing may give their shares freely.
In summary, the points of controversy and their solutions in the context of contemporary fiqh are reflected in the following table:
Controversy over Inheritance Analysis of Contemporary Fiqh Practices Time of distribution and provision of It can be punished as a grant or gift and conditions on inheritance has no effect from the granting of Percentage of distribution and There is no special percentage in the determination of heirs distribution of grants as well as the recipients so that it is in accordance Ibnu Elmi A.
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with the point of view of contemporary Transparency of contracts on education No problem and in accordance with contemporary fiqh law Parent-owned business entities It can be punished as a grant, will, or inheritance conditionally with detailed Customary provisions for the youngest It can be punished with a will with certain conditions or inheritance followed by a grant Conclusion The conclusion is that not everything considered inheritance by the community can actually be classified as inheritance according to Islamic law.
Broadly speaking, these assets are divided into two categories: assets that are handed over or entrusted before the death of the benefactor can be regarded as a gift or grant to the heirs, while assets that can be accessed posthumously can be further examined in detail depending on the conditions present.
If the deceased specified an allocation of assets before their passing that takes effect posthumously, and this allocation differs in percentage from the inheritance shares as defined by Islamic law, then it may be treated as a bequest contract.
the value of these assets is less than one-third of the remaining inheritance .
ndesignated asset.
, the person named in the bequest may receive this full amount without affecting the designated inheritance shares for other heirs.
However, if the bequest exceeds one-third of the inheritance, the consent of the other heirs is required for it to be accepted or owned as bequest property.
If even one heir withholds consent, then the bequest contract is fully void, and all the assets in question will be counted as part of the inheritance.
Thus, all transactions involved in the division of these assets are in accordance with Islamic law, and each can be treated according to the existing contracts within Sharia.
However, these assets cannot automatically be considered inheritance.
careful observation is needed to determine the nature of each transaction so that the correct contract is identified, ensuring no misapplication in classifying these assets.
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