Islamic Jurisprudence Review of Asset Distribution Before Death

Inheritance is a crucial aspect of Islamic law, clearly regulated through the Qur’an, hadith, and the ijtihad of scholars. Provisions regarding the distribution of inheritance aim to provide legal certainty, guarantee justice for heirs, and prevent family disputes. In societal practice, many parents distribute their wealth to children or family members while still alive, often to avoid conflict after death. This practice is frequently understood as inheritance distribution before the testator’s death, whereas, according to fiqh, such distribution has legal consequences distinct from inheritance.

In the study of fiqh muamalah, the transfer of property ownership can occur through various contracts, such as gifts (hibah), wills (wasiat), sale and purchase, or inheritance. Therefore, distributing assets while the owner is still alive cannot be directly categorised as inheritance; it is more accurately viewed as a gift if it fulfils the conditions and pillars stipulated in Islamic law. Understanding this distinction is vital so that the public does not err in applying inheritance or gift laws.

Fiqh muamalah governs legal relationships concerning property and transactions between people based on Islamic Sharia principles. One form of property ownership transfer is through inheritance (faraidh), which is the transfer of assets from a deceased person to living heirs according to Sharia provisions. In Islamic law, several conditions must be met for inheritance to be distributed: the testator must have genuinely died, either in reality or by legal ruling; the heirs must be alive at the time of the testator’s death; and there must be no impediments to receiving inheritance, such as religious differences or other legally specified causes. Thus, as long as a person is alive, their assets remain under their full ownership and cannot yet be termed inheritance. Distribution of assets before death is not considered inheritance distribution according to fiqh, but rather a form of ownership transfer through another legal mechanism.

In fiqh muamalah, every transaction must uphold the principles of justice, willingness, honesty, and must not cause harm to others. Distributing assets before death is fundamentally permissible if done in the form of a gift that meets the requirements and does not contradict these principles. The majority of scholars opine that parents are encouraged to be fair to all children when giving gifts. This fairness is intended to prevent jealousy or conflict within the family. Although there are differing opinions on the form of this fairness, most scholars agree that giving gifts in a discriminatory manner without justified reason is inconsistent with Islamic values.

Furthermore, fiqh muamalah emphasises that a person must not use a gift as a means to circumvent inheritance provisions. For instance, a person gifting almost all their assets to only one child with the intention of depriving other children of their inheritance share after death. Such an act is considered contrary to the objectives of Sharia as it can harm the rights of other heirs and trigger disputes. Conversely, if a gift is made proportionally, openly, witnessed by the family, and does not eliminate the rights of others, this practice can be a solution in managing family assets. In certain conditions, a gift can even help reduce the potential for future inheritance disputes.

Distributing assets before death has several benefits if carried out according to Sharia provisions. One is providing certainty regarding asset ownership, thereby reducing potential conflict among heirs. Additionally, parents can directly witness the utilisation of the assets given to their children for education, business, or living needs. On the other hand, this practice also presents challenges. A lack of public understanding regarding the difference between gifts and inheritance often causes legal misunderstandings. Asset distribution is frequently done verbally without written evidence, leading to disputes when the testator dies. Moreover, unfair treatment in gift-giving can also cause envy and discord among family members. Therefore, asset distribution before death should be conducted transparently, involve all family members, be accompanied by clear documentation, and still observe the provisions of Islamic law and applicable Indonesian legislation.