Abstract
Background: Children born out of wedlock in Indonesia still face a fragmented legal status and unequal protection in inheritance because several legal regimes apply concurrently.
Objective: This study compares the inheritance rights of such children under the Compilation of Islamic Law, Law Number 1 of 1974 concerning Marriage, the Civil Code, and Constitutional Court Decision Number 46/PUU-VIII/2010 within a unified comparative framework.
Methods: Normative comparative legal research was conducted using statutory, comparative, and conceptual approaches. Twenty-four legal materials were collected through library research and processed using a structured inventory instrument covering instrument identity, legal provision, rights holder, mechanism, quantum, and evidentiary requirements, and were then analyzed using qualitative content analysis with source and methodological triangulation.
Results: The legal instruments converge on unconditional inheritance rights through the maternal line but diverge with respect to the paternal line. The Compilation of Islamic Law denies inheritance rights from the father and provides only a compulsory bequest (wasiat wajibah) capped at one-third of the estate. The original Marriage Law provided no specific inheritance mechanism. The Civil Code grants inheritance rights ranging from one-third to the entire estate through erkenning and wettiging. The Constitutional Court Decision establishes a conditional evidentiary pathway without specifying the quantum of inheritance, while Supreme Court Decision Number 1055 K/Pdt/2023 broadens the evidentiary basis beyond DNA testing.
Conclusion: The disparity is philosophical rather than merely technical because it rests on three competing paradigms of legitimacy: theological nasab, conditional biological affiliation, and formal-empirical entitlement. Harmonization requires elevating the compulsory bequest into binding positive law and standardizing evidentiary guidance for judges.