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Edunity

Volume 2 Number 6, June 2023

p- ISSN 2963-3648- e-ISSN 2964-8653

Doi: https://doi.org/10.57096/edunity.v2i6.102

https://edunity.publikasikupublisher.com/index.php/Edunity/index

LEGITIME PORTIE IN THE PERSPECTIVE OF CIVIL LAW ON

THE DIVISION OF INHERITANCE

Mariana

, Benny Djaja

Master of Notarial Affairs at Tarumanagara University, Jakarta, Indonesia

Email: mariana2177221046@gmail.com

, [email protected]

ABSTRACT

This research examines who is prioritized and whether they are prioritized by lawful heirs or

heirs according to a will. The research method used is descriptive analysis; A method is a

normative-juridical approach, namely library research conducted on secondary data. The

results of the study concluded in the Civil Code that it is the arrangement of heirs with a will

that must be prioritized with exceptions if the contents and distribution in the will do not

conflict with the law. The legal considerations are that the will is the final will of the heir but

still does not violate the absolute portion of the legitimacy of the heirs. If the will of the heir

violates the absolute portion of the legitimacy of the heirs, they may request cancellation,

correction, or reduction of the testament.

Keywords: Legitime Fortie; Civil Law; Inheritance

Introduction

One day people must die and generally leave an inheritance, so that there is no conflict

between the heirs left behind, a rule or legal regulation is needed to regulate it, one of

the legal instruments that regulate it is the Civil Code. According to this Code, the

process of transferring property from the testator to his heirs must be based on marital

relations and blood-family relationships with the characteristic being that from the death

of the testator immediately the heirs can request division or separation of inheritance.

The Civil Code views the right to inherit as a material right to the property of the

deceased person (Article 528 of the Civil Code), and the right to inherit as one way to

obtain property rights (Meliala, 2018). The relationship between civil inheritance law

and family law is very close, therefore in studying inheritance law, it is also necessary to

study related inheritance law systems, such as the family system, inheritance system,

inheritance methods, and others. The kinship system in Civil inheritance law is a

bilateral or parental family system, in this system descendants are traced both from the

husband and wife (Suwarni et al., 2020). The inheritance system regulated in Civil

inheritance is individual, heirs inherit individually or individually, and heirs are not

differentiated both male and female inheritance rights are equal.

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When a person dies, the legal relationship does not necessarily disappear, because the

party left behind by the departed person is not only a person or thing, but the life and

death of the deceased person directly affect the interests of various other members of

society and the interests of family members, a person's life needs to be maintained and

settled (Superman, 2022). In principle, only legal rights, and obligations in the field of

property or property can be inherited.

Inheritance in Indonesian law adheres to the individual system, inheritance must be

distributed immediately, and each heir can control or own the estate according to their

respective shares. In civil inheritance law, the principle applies that if a person (heir)

dies, his rights and obligations immediately transfer to his heirs according to law, if these

rights and obligations are contained in the field of property law or other fields The

characteristic of the civil inheritance law system that is different from other inheritance

law systems is that the estate of the heirs must be distributed to those entitled to the

property as soon as possible (Labetubun & Fataruba, 2016). Even if the heir's estate is to be

left undivided, it must be approved by all heirs, as for the difference between inheritance

and inheritance is that the inheritance has not been deducted from debts and other costs,

while the inheritance has been reduced by debt and is ready to be divided (Afandi, 1986)

The law designates as heirs blood relatives of the surviving spouse. Transfer of

inheritance to the legal blood relationship of the deceased husband/wife, it is determined

that the share of property that must be given is to the heirs in a straight line The heir as

the owner of the property has the absolute right to regulate whatever is desired for his

property (PNH Simanjuntak, 2017). The legal system provides guarantees and

protection against arbitrary acts against the wealth of people who have died and

determines who is entitled to the property This is a consequence of inheritance law as a

governing law. Heirs who have absolute rights to an unavailable share of the estate are

called heirs of the Legitimaris. While the unavailable part of the estate, the part which

may not be otherwise assigned by the testator, the inheritance to which the heirs of the

Legitimaris are entitled is called the Legitime Portie (Tandey et al., 2020).

So, the right of the Legitime Portie is the right of the heirs of the Legitimaris to the

unavailable part of the estate called the heirs of the Legitimaris. In Civil inheritance law

there are two ways to obtain inheritance, namely: Provisions of the Act or Wettelijk

Erfrecht or Ab intestato, namely heirs who have been regulated in the Law to get a share

of the inheritance, because of family relations or blood relations with the deceased and

Testament or Testamentary Erfrecht, namely heirs, because appointed or stipulated in a

will left by the deceased (Palit, 2022).

Heirs according to the Act (Ab Intestato) i.e., because of their position according to the

Act, for the sake of law are guaranteed to appear as heirs, while heirs according to the

will (Ad Testament), that is, heirs who appear because of the "last will" of the testator,

which is then recorded in the testament. Heirs who appear according to a will or

testamentary erfrecht can go through two ways, namely Erfstelling which means the

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appointment of one/several people to be heirs to get part or all of the inheritance

property, while the designated person is called testamentary erfgenam (Maripigi, 2021),

which is then recorded in the will, the second way is Legaat (testamentary grant) is the

granting of rights to someone based on a special testament/will, the person who receives

the legat is called the Legatarist (Adisiswanto & Maghfuroh, 2022)

The provision of the will can only be carried out after the grantor (heir) dies. Which takes

precedence and precedence over heirs according to law or heirs according to wills? In

the implementation of the Civil inheritance law the heirs according to the will take

precedence, with exceptions if the contents and divisions in the will do not contradict

the Act (Wowor, 2020). The legal consideration is because the will is the "last will" of the

testator to his estate, provided that it must not harm the heir's share according to the Act,

because the heirs according to the Law have an absolute share (Legitime Portie), which

is stipulated in Article 913 of the Civil Code which cannot be violated at all, and if the

will or grant from the testator violates the provisions of the absolute share of the heir’s

Aris legitimates can then be done importing or subtraction.

An heir who has an absolute share is also called Legitimaris, meaning that if the heirs

whose share is stipulated in the will not harm the absolute share of the heirs of the

Legitimaris, the will can be executed even if the absolute share of the heirs of the

legitimacy is harmed by the heirs of the testamentary, it must be returned to the heirs of

the legitimate according to the share they should get.

Based on this description, the formulation of the problem in this study is how Legitime

Portie from the perspective of the Civil Code on the distribution of inheritance, the

purpose of this study is to analyze how the distribution of inheritance with the provision

of absolute rights in the Civil Code.

Based on the results of a search of various literature and previous research related to the

title Legitime Portie in the Perspective of the Civil Code on the Division of Inheritance,

several studies were found that had similarities with the title studied, but different in

the focus of the problem with this study. The paper is used as a reference in the research

of this article.

First, Research by Anastasia Tamara Tandery et al entitled Implementation of Absolute

Rights of Heirs to Wills/Testaments That Deviate from the Provisions of the Legitime

Portie Burgelijk Wetbook (BW), in 2020. This research was conducted by focusing on the

discussion of wills/testaments as implementing provisions of the testator's will. In this

case where the testator is fully entitled to his estate, therefore also the testator has the

right to divide his property among the heirs according to his will which is reviewed

according to the Law of Inheritance BW

The second study by Niluh Gede Suwarni et al entitled Division of Inheritance in Review

of the Civil Code in 2020. This study focuses on how to distribute inheritance properly

based on the Criminal Code, and how to solve the problem of inheritance distribution to

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heirs outside the court or non-litigation. The difference between this study and the two

previous studies is that ;p there is a study that focuses more on examining how the

distribution of inheritance to the absolute rights of heirs whose parts have been

determined by the Civil Code even though the will determines otherwise, while in the

previous research at the beginning, namely the will made by the testator, there were

deviations from existing laws and regulations deviation are intended to give a share to

another person who is not an heir who is entitled to receive the inheritance as regulated

by law (heirs ab intestato) and this can be done importing by heirs who by law are given

absolute rights. In the next research, namely a division of inheritance, the transfer of

rights and obligations of heirs are determined by 3 ways in making wills and resolving

inheritance disputes through non-litigation channels.

Research Method

This research is a type of normative legal research. Normative legal research is a method

based on steps to find a principle, norm, principle, or legal doctrine to answer legal issues

that are being faced related to the legitime portals in the perspective of civil law books

on the distribution of inheritance. This research model is used to find answers, truth

values, and the best solution to problems that occur while still observing the principles

of legal justice.

This research uses two approaches, namely the legislative approach, namely by

examining all laws and regulations related to the legal problems faced by the so-called

and conceptual approaches, starting from the perspective of viewpoints and doctrines

that develop in the field of legal science. By studying doctrines in legal science, you will

find ideas related to principles, norms, principles, or legal doctrines related to the

problems faced in compiling legal arguments to solve problems related to the legitime

portal in the perspective of civil law laws on the division of inheritance (Luhukay, 2021).

The legal materials to be used in this study are data obtained based on literature studies,

with techniques for collecting legal materials used in normative legal research carried

out by reviewing and collecting the three legal materials, namely primary legal

materials, secondary legal materials, and tertiary legal materials. Data processing or

analysis in literature research in this study is carried out qualitatively.

Result And Discussion

That the Law of Inheritance in Civil Law is a certain part of Civil Law as a whole and is

part of the law of property and therefore only rights and obligations in the form and

form of property which is an inheritance to be inherited by the testator, rights and

obligations in Public Law and rights and obligations arising in decency, Modesty and

rights and obligations arising from family relationships cannot be inherited.

The Civil Code views the right to inherit as property or property of a deceased person,

the right to inherit to obtain property rights, inheritance law is a provision that regulates

whether and how various rights and obligations regarding a person's wealth at the time

of death will transfer to a living person (Luhukay, 2021). The fair distribution of

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inheritance is a legal rule that applies the main thing in the inheritance process (Haries,

2013). The Civil Code can be interpreted as a legal rule that regulates the fate of a person's

wealth after death and determines who can receive it (Parinussa et al., 2021).

The element of coercion contained in the civil inheritance law is about the provision of

granting absolute rights to certain heirs over a certain amount of inheritance (Wongkar,

2021), for the heirs of Abintestato (without a will) by the Act held a certain part that must

be received by them, a part protected by law, because they are so close to the heir that

the legislators consider it inappropriate if they do not receive anything at the same very

(Sibarani, 2015).To the extent to which the framers of the law determine whether

something is regulatory or coercive, it has been considered that the reasons concerning

family law are connected among others with the will or last will of the deceased.

By law, all the estate of the testator (the deceased) falls into the hands of his heirs. The

estate must be distributed to the heirs according to their respective classes and shares

according to law. The laws and regulations themselves divide the class of heirs into 4

groups and they are the ones who are entitled to receive inheritance property, namely:

Group I i.e. Legal children, husband and wife who live the longest, including the second

wife......and so on (Article 854 jo Article 852a of the Civil Code), Group II parents and

siblings, father or mother (Article 854 to Article 857 of the Civil Code), Group III is a

blood family in a straight line up both in the paternal and maternal lines, briefly it can

be said to be paternal grandparents and maternal grandparents (Article 853 of the Civil

Code), and group IV is a blood family sideways up to the 6th degree (six), namely

paternal and maternal cousins (Article 858 of the Civil Code) (Munarif & Tantu, 2022).

When a person dies, he leaves a lot of property, then the estate goes to the heirs (Prawira,

2022). In this case, the law provides completely and clearly that if the first class of heirs

does not exist, then the second-class heirs are entitled to receive the inheritance. If the

second-class heir does not exist, then the right of inheritance falls to the third-group heir.

And if the heirs of the third class do not exist, then the right of inheritance falls to the

heirs of the fourth group

However, the above provision applies generally, in the sense that if the testator has not

made a valid provision, this provision excludes the basic principle of legitime portie that

if the testator has made a valid decree then the determination may deviate from the

provisions of the law that must take precedence, a valid provision which means that the

testator during his life has determined certain conditions for his estate to be inherited

later. The provision is contained in the will, so with the testator making a will containing

the provision of his estate, the will must come first.

However, the amount of distribution of inheritance based on a predetermined will has

a limitation, namely the testator cannot testify to all his assets where there is a legitime

portie part, which is an absolute share that must be given to the heir by the provisions

of the law that governs it, this is by Article 913 of the Civil Code Legitime portie or part

of inheritance according to law is the part and property that must be given to heirs in

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line straight according to the law, against which the deceased may not establish anything

either as a grant between living persons or as a will (Pitlo, 2021).

An heir must have absolute conditions and general conditions so that the property can

be passed from the heirs to the heirs. The general requirements are the presence of a

person who has died (Article 830 of the Civil Code), the existence of heirs left behind,

and the number of assets left behind (Patma et al., 2021). People have the freedom to

control what will happen to their wealth after death. An heir has the freedom to deprive

his heirs of his inheritance rights, because although there are provisions in the Law that

determine who will inherit his estate and how much each share, the provisions on

division are governing law and not coercive law.

The question will inevitably arise because of doubts when, for example (Sari, 2018),

someone makes a will but its contents are considered unfair by other heirs, such thinking

arises because in general will deviate from the provisions of inheritance legally as

mentioned above, inheritance is an act of replacing or continuing the position of the

deceased person that has something to do or has to do with the property right. Is all a

person's wealth part of the deceased's estate? The answer, not all, which does not

include a share in a person's estate, includes the right to use/use and inhabit / placement

(gebruik en becoming), the right to use the proceeds/benefits from and as long as the

right is owned by the heir during his life, who according to law his rights and obligations

regarding this void / terminate by death (Articles 1612, 1646, 1651, 1664, 1813 Civil

Code), the rights and obligations of a person who has agreed do not always pass to his

heirs.

Heirs according to civil inheritance law have the right to demand the division of heritage

property, this is based on Article 1066 of the Civil Code after the heir dies, the inheritance

property is open to be divided based on the agreement made by the heirs and the law

determines the agreement not to divide the inheritance is a period of 5 years and after

the expiration of that period the heirs can make a new agreement.

The heirs who can exercise their rights to the protected part of the Act are called

legitimate while the part protected by the Act is called legitime portal So the estate in

which it is legitimate is divided into two, namely legitime portal (absolute part) and

Beschikbaar (available part). The available portion is the part that can be controlled by

the testator, he may grant it while he is alive or testify to it. For people not to easily

exclude them, the Law prohibits a person during his lifetime from granting or requesting

his property to others by violating the rights of Abintestato's heirs, the grantee must

return the property that has been granted to him in the estate to fulfill the absolute share

of the heirs (Article 1088 of the Civil Code).

The conditions for being able to claim an absolute part (legitimeportie) are; People must

be blood relatives in a straight line, in which case the position of garda (husband/wife)

is different from that of children. Although after 1923 Article 852 of the Civil Code

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equates husbands/wives with the legal children they give birth to, husbands/wives are

not in a straight line down, they include a sideways line. Therefore, the husband/wife

does not have a legitime portie or is called non-legitimate. People must be Abintestato's

heirs. Seeing these conditions, not all blood families in a straight line have the right to

an absolute share. The only ones who own it are those who are also Abintestato's heirs.

These people, even without regard to the testator's will, are Intestate’s heirs.

According to Article 833 of the Civil Code, a person by himself due to legal provisions

acquires property (Sagala, 2018), all rights and receivables from the testator, but a person

can accept, refuse or consider for the receipt of an inheritance, therefore, all

consequences of the sound of this article then all obligations of the heir are the

responsibility of the heir, the right to receive an inheritance by requesting registration

of the rights and obligations of debts and receivables from the testator. and the right to

sue a person, heir, or another heir who controls part or all the estate to which he is

entitled (Article 834 of the Civil Code) (Sagala, 2018)

The rule of law in one country is not the same as the rule of law in another country,

especially regarding who is entitled to it and who legitimates who is entitled to what.

An absolute share, reserved for the share of the legitimate jointly, if a legitimate refuses

(viewers) or is not fit to inherit (rewarding) to obtain something from that inheritance so

that his share becomes uncontrollable (werdnietbeschikbaar), then that part will be

accepted by other legitimate. So, if there are other legitimate then the absolute share is

still reserved for these people, only if the legitimists demand it, this means that if there

is a legitimate as long as they do not demand it, then the heir still beschikkingsrecht"

over all his property.

In the Civil Code the legitime is carried out almost consequently, in various places

expressions can be put forward, expressions such as remembering (beholden) the rules

written for legitime. Those who are entitled to become heirs are related by blood to the

heir and the heir's wife/husband who is still alive when the heir dies. The heir can only

deprive the heir of his rights by doing deeds of ownership of property in such a way as

not to leave the property to be divided as an inheritance.

In the opinion that legitime is taboo and cannot be mentioned at all, also legal acts that

benefit legitimates are invalid, for example, the heir leaves to his daughter who marries

in the joint marital property all property provided that his inheritance must not fall into

the joint property of his child's marital property. Although the provisions regarding

legitime are coercive law, they are not in the public interest. The provision exists in the

interests of legitimists and not the public interest. Legitimaris can therefore allow their

rights to be violated, which is closely related to the opinion that legitime violations do

not result in "neighed" (nullity and law) but can only be asked for their simple

cancellation

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Heirs by will are persons called by a will to receive the entire will or comparable share

thereof, between the position of heirs by death and heirs by will there are several points

of difference (Article 959 of the Civil Code), inheritance by death there has never been a

change (except in the case mentioned in Article 1022 of the Civil Code). The absolute

share is given by law to each heir in a straight line and not to all legitimists jointly, thus

each holder of absolute rights is freely entitled to waive that right or claim it.

Although the testator does not make an assignment of the absolute parts nor may he

establish the conditions for governing them, a testamentary determination in violation

of the absolute part is not null and void of the statute of the determination shall remain

in effect. Every clause in a will concerned with an absolute share is not allowed but

remains valid as long as the legitimists do not protest against the establishment. The

whole nature of legitime is contained in 2 rules, namely that a legitimist can demand the

annulment of the acts of the heir that are detrimental to the Legitime Portie and the heir

may not, however, decide regarding the absolute part.

The Act does use the words (part of the inheritance according to the Act) and often uses

the words (heir) when legitimacy is meant. Therefore, it can be concluded that the

legitimacy is the heir, and from this, it can be further concluded that if the legitimate

accepts a violation of his legitimacy rights then he still does not lose his position as heir.

His position as heir can only be lost in the manner referred to in Article 1057 of the Civil

Code, which is "overweening" (rejection) of the estate which must be done expressly

before the clerk of the District Court.

The existence of an absolute share according to the law is an element that equalizes,

because it causes the spread of wealth, if a rich man leaves 10 children and is allowed to

only give all his wealth to only one child, then one child will live a luxurious life while

the other 9 children will live destitutely. The law implements the principle of legitimacy

almost without exception with all its consequences. The legitimist has the right to a share

of the wealth that the heir will leave if during his lifetime he does not give something in

a c uma-c to someone else.

Legitamaris is the heir by death, For heirs in the bottom line, if the heir leaves only 1

legal child according to Article 914 of the Civil Code is 1/2 (one-half) of his share

according to the Law, if leaving 2 legitimate children then the absolute share is 2/3 (two-

thirds) of the share according to the Law of the two legal children, whereas if leaving 3

or more legitimate children, then the absolute share is 3/4 (three-quarters) of the share

of the heirs according to the Act is the share of the heirs to their estate if no grant or

testament can be carried out.

For heirs in the above line, the amount of the absolute share according to the provisions

of Article 915 of the Civil Code is 1/2 (one-half) of the share according to the Law. While

the absolute share of extramarital children that have been recognized (article 916 of the

Civil Code) is forever 1/2 (one-half) of the share of extramarital children according to the

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provisions of the Law. Heirs who do not have an absolute share or legitime portie are

the first husband/wife who lives the longest. The two brothers of the testator. They are

not entitled (nonlegitimaris) because they are in a sideways line. Whether or not the

calculation based on the legitime portie is used depends largely on the presence or

absence of grants or statements that can be implemented. The absolute share

(wettelijkerfdeel) is calculated not only from what the heir had at the time of his death

but also from what should or should have existed if the heir had not donated anything

during his life.

Is the legitimist an heir or not? This is widely questioned and debated by legal experts.

This has to do with Article 920 of the Civil Code which among other things states that

the claim for reduction can only occur if the legitimates (or their heirs/assignees) demand

it. If the heir does not spend the property because he has bequest it or will it, then the

remainder, or the existing one, is divided among Abintestato's heirs which also includes

the legitimate.

In that position, of course, legitimists have a part (Article 833 of the Civil Code). But what

happens when the heir has alienated all his wealth? If the beschikbaardeel (the part

available for grants and wills) is voluntary, then Article 921 of the Civil Code must also

be considered, similarly the absolute part (wettelijkerf deel) must also be counted even

if there is no violation. To determine how large the absolute share (wettelijkerfdeel),

according to Article 921 of the Civil Code, must first be recorded all the goods that were

still in existence at the time of the death of the giver or testator.

The way BW guaranteed a share of the legitimate ways to give legitime parties

individually to each heir. Not to the heirs as a whole or a share together. The result here

is that the free part is not certain in magnitude. It depends on many children. This

method of legitime portie arrangement is called the positive system, with the

consequence that if there is an heir of the legitime who rejects or turns out to be onward

against the inheritance of the heir, then the share of the legitimate concerned falls into

the free share of the inheritance, not the right of the other part of the legitimate

inheritance.

The rejection or incompetence of one or more legitimate heirs, does not change the

legitime portie fraction. With the rejection or impropriety of one or several heirs, the free

share becomes even greater. In case there are no legitimate heirs, then the free share

includes the entire inheritance, or in other words in case there are no legitimate heirs,

the heir is free to take provision over the entire inheritance.

Grants made by the testator during his lifetime, shall not be diminished, except when it

turns out that all the property that has been bequeathed is insufficient to warrant the

legitime portie. However, if grants during the life of the testator must also be reduced,

the deduction must begin with the last grant given to previous grants. The return of the

fixed property, which shall be made in respect of the preceding Article, shall take place

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in its form, notwithstanding any provision to the contrary. But if the deduction is to be

applied to a plot of the yard that cannot be divided as desired, the grantee, even if he is

not the heir, shall be entitled to make a cash reimbursement to be left to the legitimist.

The reduction of what is testified shall be made without distinction between the

appointment of heirs and the granting of wills, unless the testator has expressly

determined which shall take precedence between the execution of the appointment of

heirs or the granting of wills, in which case, such wills shall not be diminished, except

where other wills are sufficient to satisfy the legitime portie. A person can bequeath part

or all his property by will, then the rest is the share of heirs under the law, so the grant

of a prospective heir based on a will does not have the intention to abolish the right to

inherit ab intestato.

If we look at the various articles in the Civil Code, Articles 874, 913, and 929, legitimates

are heirs or have the position of heirs. The legitimacy is only an heir if he asserts his right

to his absolute share. What he enjoys because of his "importing" (deduction) acquired by

the right of heirs (Article 920 of the Civil Code), the purpose of the claim for reduction

or withholding is that the gifts made by grant or will be reduced, so void insofar as it is

necessary to give to the legitimist what is rightfully entitled to him as heir. Such a line of

thinking can be found in Article 929 of the Civil Code.

Conclusion

Everyone has the freedom to control what will happen to his wealth after death. The

Civil Code regulates heirs with wills that must take precedence with exceptions as long

as the content and division in the will do not contradict the Law, and legal considerations

because the will is the last will of the testator to his estate. If the provisions contained in

the will, regarding the estate, then the will must come first. However, the amount of

distribution of inheritance based on a will has been determined as a limitation, namely

the heir cannot testify all of his wealth which is a legitime portie, which is an absolute

share that must be given to the heir by the provisions of the law that governs it, this is

by Article 913 of the Civil Code. A statutory legitime portie is a share and property that

must pass to heirs in a straight line according to law, against which the deceased person

may not establish anything either as a grant between living persons or as a will.

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