Tirkah Distribution Obligation Rules According to Fiqh Al-Awlawiyyat

Fiqh al-awlawiyyat is the science of putting something in its position with the various standards (dhawabith al-awlawiyyat) used. Some of these standards are seen from various aspects such as the level of benefit, keeping mudharat away, and the efficiency of implementation time. This article is a literature researc with a normative juridical approach. The methodology used is a descriptive study of analysis with primary sources in the form of literacy regarding fiqh al-awlawiyyat. The secondary source used is literacy that discusses fiqh and ushul al-fiqh which are relevant to the research variables. The results of the study concluded that the orderly distribution obligations of tirkah must have an orderly order, namely; the obligation of distribution of common property rights, the obligation of distribution of the cost of handling the remains, the obligation of distribution of the cost of repayment of mayit debts, the obligation of distribution of wills, and the obligation of distribution of inherited property.

inheritance (mirats) has not been discussed in detail in the order of distribution so that it still opens up gaps in property ownership in a unjustly way, especially when there is a conflict of interest in distribution priorities, remembering, there are some categories of rights of the inheritance (tirkah) which must be distributed before being determined as legal inheritance (mirats) for the heirs (Kamaruddin, 2018).
In general, inheritance (tirkah) must be issued for various categories of distribution without explicitly mentioning the argument for the order of distribution, starting from distribution for paying off the debts of the heirs (Rahmad, 2017), paying the cost of tajhiz al-mayyit including the cost of taking care of the heirs, (Hasnita & Zubair, 2019) Moreover, based on the context of inheritance law that grow in Indonesia, there is another distribution that must be carried out which is the distribution of joint property (Zubaidi, 2020).
Therefore, the discussion of the rules of distribution inheritance obligation (tirkah) is interesting to be studied for the realization of legal certainty over the problem of the rules of tirkah distribution obligations which will be studied through the perspective of fiqh al-awlawiyyat through a normative juridical approach by using secondary legal materials from various books of fiqh alawlawiyyat, fiqh and ushul al-fiqh which were analyzed by using qualitative descriptive methods in deductive conclusions.

Definition of Heritage Property (Tirkah)
The word at-tirkah ( َ ‫ك‬ ‫ِّرْ‬ ‫الت‬ َ ‫ة‬ ) or at-tarikah (ُ ‫َة‬ ‫ك‬ ِ ‫ر‬ َّ ‫)الت‬ literally is ism al-masdhar (noun) which means maf'ul (object) which means َ ‫ك‬ ْ ‫و‬ ‫ر‬ ْ ‫ت‬ ‫م‬ ْ ‫َال‬ ‫ء‬ ْ ‫َّي‬ ‫الش‬ (something left behind) (Muhammad Ibnu Manzhur, 1993, p. 406). Therefore, when it is called tarikah al-mayit, it means whatever that inherited by the inheritance. The plural form of the word tarikah is tarikat (َ ‫ات‬ ‫ك‬ ِّ ‫ر‬ ‫)ت‬ (Kementerian Wakaf dan Urusan Keagamaan Kuwait, 1983, p. 206). In terminology, at-tarikah according to the majority of al-Malikiyah, as-Syafi'iyah, and al-Hanabilah are defined by: At-tarikah is everything that is left by deceased from various property and rights that remain (as his) absolutely." (Kementerian Wakaf dan Urusan Keagamaan Kuwait, 1983, p. 206) From this definition, it can be understood that the scope of tarikah includes two things which are all types of property and all types of property rights which left by deceased (heir). This is accordance with the words of the prophet that combine of two types of tirkah, either in the form of property or in the form of rights, into something that becomes the property of his heirs: "From Abu Hurairah r.a, from Muhammad Peace be upon Him (PbuH), he said whoever (died) left property then it belongs to his heirs, and whoever (died) left burden/dependents (no family member to support him or nobody pay his debt off) then it is on us." (Al-Bukhari, 1993, p. 845) In general, the scope of tirkah/tarikah includes various property and rights as stated in the principle that the original law of rights and property is inherited unless there is an argument that states right are not included into something that is inherited like property (Rusydi, 2004, p. 227). There are five kinds of tirkah, namely: First, various object, either moving or immovable objects. Second, various income rights either from various objects such as rights from income of drinking water sources, etc or the rights of those who are not from the income of an object such as hak syuf'ah, and hak khiyar in a sale and purchase contract such as khiyar al-syarth, khiyar al-ru'yah and khiyar al-ta'yin (Kementerian Wakaf dan Urusan Keagamaan Kuwait, 1983, p. 207).
Third, various attempt which are made by testator before he died, such as a trap that is set before he died and the trap catch prey after the heir died. Fourth, the right of paying diyat for the death of the testator due to accidental or mistaken murder (Aldizar, 2004). Fifth, intellectual property rights of the deceased that occur with the akad tarkhis (intellectual property rights license agreement) when murakkhas lahu (the recipient of the intellectual property license) dies, the ownership of the tarkhis pass to the heirs (Sapi'i, 2021). This intellectual property right or copyright belongs to tirkah that can be object of inheritance in the category of dynamic objects that are intangible (Fransiskus, 2016, p. 5). As well as being an object of joint property (Mazlan, 2022, pp. 23-24).

Fiqh al-Awlawiyyat and its Function
The word al-fiqh (َ ‫ه‬ ْ ‫ِّق‬ ‫ف‬ ْ ‫)ال‬ means َ ْ ‫ه‬ ‫ف‬ ْ ‫ال‬ ‫َو‬ ‫م‬ ْ ‫ٍل‬ ‫ع‬ ْ ‫.ال‬ In Indonesian, it means knowledge and understanding (Nurhayati, 2018, p. 129). According to the terminology, fiqh is the science that regulates mechanically in furu' problems (non-ushul branch problem) (Sumarjoko & Ulfa, 2019, p. 33). In other word, fiqh also means knowledge of syara' laws which contain character of 'amaliyah (practiced) which is known from detailed arguments ( . While the word al-awlawiyyat (َ ِّ ‫َّات‬ ‫ي‬ ِّ ‫و‬ ‫ل‬ ْ ‫و‬ ْ ‫)اْل‬ is plural form of the word al-awla ‫ى(‬ ٰ ‫ل‬ ْ ‫و‬ ْ ‫)اْل‬ and is ismuttafdhil or a word that shows the most appropriate meaning (َ ‫ر‬ ‫د‬ ‫جْ‬ ْ ‫)اْل‬ and more suitable ‫ى(‬ ‫رٰ‬ ْ ‫ح‬ ْ ‫.)اْل‬ The use of the term al-awlawiyyat has actually been mentioned by previous scholars as in the example of the sentence hadza al-fi'l awla min dzaka (َ ‫اك‬ ‫َذ‬ ‫نْ‬ ‫ىَمِّ‬ ٰ ‫ل‬ ْ ‫و‬ ‫ْلَأ‬ ‫ِّع‬ ‫ف‬ ْ ‫اَال‬ ‫ذ‬ ٰ ‫)ه‬ which means this act is more appropriate than it. However, the term was not yet a separate branch of science. The definition of al-awlawiyyat according to Muhammad Al-Wakili is: Another understanding of the term al-awlawiyyat is something that is ordered by the syari' to take precedence in its implementation or to end it when various actions are gathered at one time ( . Muhammad Al-Wakili argues that the person who defines that the term fiqh al-awlawiyyat as a new branch of knowledge in Islam is Yusuf Al-Qardhawi in his book He interprets al-awlawiyyat with the meaning: As for what we mean fiqh al-awlawiyyat is put something in its position." On the basis, fiqh al-awlawiyyat means: Knowledge about the syara' laws have the priority right of charity over others based on knowledge of the position and circumstances and it needs to take precedence." According to the definition above, fiqh al-awlawiyyat has a major role in making decisions, especially those related to eligibility and propriety/ priority so that a legal decision or legal action will be free from various personal interests (َ ِّ ‫د‬ ‫رْ‬ ‫ف‬ ْ ‫َال‬ ‫ة‬ ‫ح‬ ‫ْل‬ ‫ص‬ ‫)م‬ or a group of people interest (vested interest). It is based on fiqh alawlawiyyat uses standards that apply in the syari'at (َ ‫ِّي‬ ‫ع‬ ‫رْ‬ َّ ‫َالش‬ ‫ار‬ ‫ْي‬ ‫ع‬ ‫مِّ‬ ْ ‫)ال‬ to determine a legal decision or legal action which is the most important of the important ones (Al-Qardhawi, 1995, p. 17). The standard contains various priority distributions including everything that is obligatory take precedence over sunnah, leaving something prohibited is more is more considered that carrying obligations, something with greater benefit is prioritized over the least beneficial, something is easy is more beneficial to take precedence over something difficult ( . In-depth discussion of the standard of priority rules (َ ِّ ‫َّات‬ ‫ي‬ ِّ ‫و‬ ‫ْل‬ ْ ‫و‬ ْ ‫َاْل‬ ‫ط‬ ِّ ‫اب‬ ‫و‬ ‫)ض‬ has been mentioned by Muhammad Al-Wakili in fiqh al-awlawiyyat. He stated that there are twenty two standards that must be considered where there is a conflict or priorities in implementation of an act, including: First, something with more benefit is prioritized to be done than something with less benefit. Second, something that is more dangerous is more important to avoid than something that is less dangerous. Third, something fardhu and ushul are preferred to be done from nawafil and furu' practices. Fourth, something that has a short execution time and is required to be done immediately (fauri) is prioritized to be done over something that has a long implementation time and is not required to be implemented .

The Rules of Distribution of Heritage Property (Tirkah) According to Fiqh al-Awlawiyyat
Jumhur fuqaha argues that there are four kinds of obligations that must be fulfilled from the heritage property, which includes the obligation to pay for the funeral expenses (tajhiz al-mayyit), the obligation to pay off the debt of the deceased, the obligation to fulfil the will and the obligation to distribute the inheritance to the heirs (Kementerian Wakaf dan Urusan Keagamaan Kuwait, 1983, p. 210). However the rules distribution of these obligations must be further expanded into five distribution areas, especially for people who recognize the existence of joint property rules in marriage, as will be explained in this paper.

The obligation to distribute joint property rights belonging to the widower or the widow
In the study of fiqh, the discussion of joint property has not been specifically discussed because the discussion of joint property is not found textually either in Al-Qur'an or Sunnah, so that the jurists of the century A.D have not specifically discussed joint property yet. The discussion of joint property emerged around the century A.D which can be traced in the study of local Indonesian fiqh (Wahyudi, 2021, p. 2). The death of marriage couple in Indonesia has an impact on the property left behind, especially on property acquired during the marriage.
The concept of joint property is based on customary law in Indonesia law, which has dispute resolution by customary judges through unwritten customary deliberation procedures (Harun, 2009, p. 5). In Aceh, joint property in marriage is called "harta sihareukat", in Javanese, it is called "harta gono-gini", in West Sumatera, it is called "harta surang", in Madura, it is known "ghunaghana", (Zubaidi, 2020, p. 32) in Kalimantan, it is known "barang perpantangan", in Sulawesi, it is known "barang cakara" in West Java, it is called "guna kaya" or "campur kaya" (Nawawi, 2018, p. 3). Even in other countries beside Indonesia such as Malaysia also recognize this joint property as "harta sepencarian" which was adopted from customary law Malay (Kamaruddin, 2018, p. 261). Therefore, in customary law, each spouse who lives longer gets a share of joint property with different terms and portions.
Various customary laws related to joint property that developed in the community then recognized by the government and adopted into positive law as unification to overcome potential problems in marriage. (Nawawi, 2018, p. 4) One of the provisions relates to the right of ownership of half of joint property of the spouse who is living longer as stated in the first paragraph of article 96 of the Compilation of Islamic Law (KHI). Furthermore, article 97 of the KHI states that divorced widows or widowers are each reserved to get one-half of the joint property as long as it is not specified otherwise in marriage agreement. Therefore, the distribution of joint property in the case of divorce by death is 50: 50 (Imran, 2020, p. 22).
Referring to positive law, article 1 letter f of KHI states that joint property is property that obtained either individually or together with husband and wife during the marriage bond without questioning whether it is registered in the name of anyone (Zubaidi, 2020, p. 31).The concept of joint property in marriage is analogous to syirkah al-abdan contract which means if there are two parties who are allied to each other to run a business, either the same distribution or different in term of profession, along with suitability of hirfah (job description). For instance, cooperation which is conducted between two people who both work as tailors, or cooperation between two people in different profession, such as tailors and spinners (Al-Anshari, 2001, p. 255).
Besides, Islamic jurists in Indonesia also determine custom ('urf) as a source Islamic law (Wahyudi, 2021, p. 8) as stipulated in the principle: "A custom (something that is continuously done by humans and can be accepted by common sense) can be used as a legal basis" (As-Sayuthi, 1983, p. 89). Indonesian legal experts see that the joint property is a consequence of the material relationship of a man and a woman who during their marriage produce assets from their business called syirkah between husband and wife, which then bears joint property rights as one of the consequences of the law (Wahyudi, 2021, p. 8). Based on these provisions, one of the obligations that must be carried out from tirkah al-mayyit is the distribution of joint property rights belonging to the widower or widow as a spouse who lives longer.
This joint property distribution occupies the first position that must be distributed. This is because from the total accumulated assets acquired ad owned by both husband and wife since the marriage took place, they belong to each of them with a fifty-fifty (50:50) ownership proportion as long as it is not specified otherwise stated in the marriage agreement. Therefore, when the husband or wife (one of the spouse) dies, it is important to separate half of the joint property which is then distributed to the spouses who live longer. It means that the assets to be distributed to the heirs must be 100% of the heirs' property while a half of the assets accumulation acquired during the marriage is not 100% owned by the testator but half of the heirs' spouse who live longer.
In addition, the distribution of joint property in the first order is also in accordance with one of the standard priority rules (َ ِّ ‫َّات‬ ‫ي‬ ِّ ‫و‬ ‫ْل‬ ْ ‫و‬ ْ ‫َاْل‬ ‫ط‬ ِّ ‫اب‬ ‫و‬ ‫,)ض‬ namely: "Something that has more benefit is prioritized to be done than something that has less benefit." ( ‫الوكيلي‬ , 1997 ) .
In Indonesia, wives also have a contribution that is no less large than a husband in helping the economy and family welfare. Wives pay a role in taking care of the household chores that tend to be unpaid and some of them work to earn money for the family (Sari, 2019). In which the obligation to provide primary income in the study of fiqh is actually borne to the husband, such as providing food, drink, clothing and shelter, besides to fulfil her biological needs (Armansyah, 2020, p. 194). Therefore, based on the wife's contribution this is no less large than the husband's contribution, the first distribution of joint property for couples who live longer is a big benefit that deserves to be prioritized over other distribution.

Obligation of distribution of funeral expenses
The word tajhiz according to language means the preparation of everything needed for a matter (Kementerian Wakaf dan Urusan Keagamaan Kuwait, 1983, p. 172). Therefore, tajhiz al-mayyit means the preparation of everything needed by the corpse when he dies. The fuqaha have agreed that the law for doing tajhiz almayyit is fardhu kifayah, it means that if some people have implemented the tajhiz al-mayyit then the obligation to do it falls for others who do not participate in carrying it out. The obligation of tajhiz al-mayyit on corpse is based on a hadits which narrated by Ibn Abbas that the prophet ordered to perform tajhiz al-mayyit on corpse that died from a broken neck when he fell from his mount: "Bath him with water and bidara leaves, and cover him with two cloths." (Al-Bukhari, 2001, p. 75) The distribution for the cost of the tajhiz al-mayyit has second discussion in this paper and the distribution takes precedence over the payment of the deceased's debt, will and the distribution of the inheritance because the funeral ceremony must be conducted as soon as possible when someone pass away. The command is as commanded by the Prophet: The cost of performing the tajhiz al-mayyit is taken from the inheritance property left by the deceased if he leaves the property. However, if the deceased does not have assets at the time of his death, then the cost of recitation of tajhiz almayyit is charged to the person who is obliged to provide him as long as he lives, so that in this case a wifeis not included in the category of parties who are obliged to bear the cost of tajhiz al-mayyit. And if there is none, then it will charged to the Baitul Mal. Then, also if there is not provide, then it is charged on the muslims as fardhu kifayah (Kementerian Wakaf dan Urusan Keagamaan Kuwait, 1983, pp. 172-173). In addition, the distribution of the cost of processing the corpse in the first order is also in accordance with one of the standard rules (

"Something that has a short implementation time and is required immediately (fauri) is prioritized to be done from something that has a long implementation time and is not required to be implemented immediately (tarakhi)."
The immediate settlement of the tajhiz al-mayyit is a priority that must be carried out before the payment of the deceased's debt because it contains of complex urgent demands in it, starting from the settlement of hospital expenses when the testator dies to burial, those are fauri.

Obligation to Distribute the Cost of Paying Off Debts
Debt in fiqh terms means: Debt is a liability that must be borne due to the existence of a contract, or the result of spending/damaging (other people's goods) or because for a loan." َ َ (Al-Hanafi, 1966, p. 157) From this understanding (debts/ burden that must be borne) is based on three things; First, debt that occurs as a result of a contract, like a sale and purchase contract in instalments and a rental contract with salary at the end. Second, debts that occur as a result of spending or destroying other people's property, like accidentally breaking someone else's house glass. Third, debts that occur as a result of debts/loans of gold, money or other means of payment.
The distribution for the settlement of the corpse's debt is the third discussion in this paper and the distribution takes precedence over the distribution of the will, because settlement of the corpse's debt is obligatory which is fauri (demands to b repaid immediately) if assets are available for repayment. The obligation to pay the debt can be understood from the words of the Prophet.
"From Abi Hurairah r.a. in fact the Messenger of Allah said: delaying the payment of debts for people who are already able is an injustice..." (An-Naisaburi, 1955, p. 1197 The distribution on the cost of paying off the debt of the tirkah al-mayyit is taken from the tirkah of the deceased as regulated in the words of Allah: "...(the distribution of the inheritance mentioned above) after (fulfilling) any bequest he (may have) made or debt..." (Surah an-Nisa: 11) (Elba Fitrah Mandiri Sejahtera, 2012, p. 78). It is possible that the debt imposed on the deceased can be a debt to Allah for instance, the debt for zakat, hajj and kafarat and it can also be a debt by the deceased to human (Kamaruddin, 2018, p. 258). The debt will still be the responsibility of someone who must be repaid even though he has died. This is as the prophet said: "From Abi Hurairah ra. He said: the messenger of Allah (PbuH): the soul of a believer is restrained (to reach his noble place) because of his debt until the debt is repaid." َ (Ahmad, 2001, p. 425) Even in another narration the Prophet was reluctant to pray for corpses that did not have tirkah to pay off their debts, it shows the urgency of paying off debts when someone dies as stated in the Shahih Al-Bukhari:  (Muhammad, 2001, p. 96) In addition, the danger by the anger of the debtor after knowing that the heir has made the will first until the property is no longer sufficient to pay off the debt is certainly a mafsadah which must be avoided in accordance with one of the standard priority rules ( ) namely: "Something that is more dangerous is more important to avoid than something that is less dangerous." ( ‫الوكيلي‬ , 1997 ) .

Obligation to Distribute Will
The word will ( َ ِّ ‫ص‬ ‫و‬ ْ ‫ال‬ َ ‫َّة‬ ‫ي‬ ) literally means message, command and advice (Summa, 2005, p. 128 Ownership that is based on (the period) after the death of (a person) voluntary, (which) ownership is either in the form of property or in the form of rights to benefits." َ َ (Kementerian Wakaf dan Urusan Keagamaan Kuwait, 1983, p. 221) In different definition, the will of property is the transferring property from owner to another party is effective after the death of the owner (Al-Munajjid, 2009, pp. 173-174) or any type of voluntary gift that is contingent upon his death (Ar-Ramli, 1984, p. 54). The distribution for the will is the fourth discussion in this paper and it takes precedence over the distribution of inheritance because the orderly has been textually stated before the obligation to distribute inheritance: "...(the distribution of the inheritance mentioned above) after (fulfilment of) the will he made or (and after paying) the debt with no trouble (to the heirs)..." (Elba Fitrah Mandiri Sejahtera, 2012, p. 79).
From this verse, two things can be understood related to the distribution of wills. The first is tirkah al-mayyit must be the first distribution of his will (if during his life there is a will) to the person in the will before it is distributed to the heirs as mirats (Al-Sabouni, 2005, p. 44). This is done to fulfil as long as the pillars and conditions, namely: First, the testator ‫ى(‬ ‫صٰ‬ ْ ‫و‬ ‫م‬ ْ ‫)ال‬ with the condition that he must be reasonable, has reached puberty, must not be a slave, and has the intention of making a will on a voluntary basis without coercion. Second, the person who receives the will (َ ‫ه‬ ‫يَل‬ ‫صٰ‬ ْ ‫و‬ ‫م‬ ْ ‫)ال‬ on condition that he or she must be present/lives at the time the testator dies, is intelligent, has reached puberty, clearly the person, is not a murderer of the person who gives the will and is not also the heir of the person who gives the will. Third, pronunciation of will (َ ‫ة‬ ‫ْغ‬ ‫ي‬ ‫)الص‬ which can be oral or written contract. Fourth, integrity property (َ ِّ ‫ه‬ ِّ ‫ىَب‬ ‫صٰ‬ ْ ‫و‬ ‫م‬ ْ ‫)ال‬ provided that the property is the property of testator, it is lawful, and the level of distribution is not more than onethird of the testator's inheritance (Al-Sabouni, 2005, p. 44).
Besides, the word washiyyah after the word min ba'di means: "...(and the inheritance rights of those who have been mentioned) after (the execution of) the will he made..." The sentence actually contains the meaning of orderly priority (awlawiyyat) is placing something in its position ( ‫الوكيلي‬ , 1997 ) . It means do the obligation of inheritance distribution after distributing the wills. Then, the verse also explains about the meaning of the word 'not to make a trouble for the heirs' is actions such as bequeathing more than one third of the inheritance and the act in making a will with the intention of reducing the share of the inheritance of the heirs even if the amount is less than one third. According to Ibn 'Abbas ra, the actions that harm the heirs are a big sin (Al-Qurthubi, 1964, p. 271).

Obligation to distribute inheritance
The distribution of inheritance to the heirs is the last obligation after tirkah al-mayyit. It is distributed for the various purposes above in accordance with the Qur'an, Sunah and Ijma' (Al-Sabouni, 2005, p. 45). Besides, the distribution also applies on the basis of the five principles of Islamic inheritance, (Muhibbin, 2009, pp. 22-23) namely: 1) the principle of ijbari, it means the transferring the property from the testator to the heirs is absolutely based on Allah's desire, 2) the bilateral principle, it means that the receipt of rights inheritance of an heir occurs through two parties both male and female relatives; 3) the individual principle, it means that the inheritance belonging to the heirs is owned individually; 4) the principle of balanced justice, it means that the inheritance received by the heirs is balanced between the rights and obligations and the balance between what is obtained and what is needed; and 5) the principle is caused of the death, it means that the transferring of the right of the inheritance to the heirs occurs automatically due to the death of the testator (Solihah, 2017, pp. 147-150).

Conclusion
Based on the discussion that has been mentioned, it can be concluded that fiqh al-Awlawiyyat is a science to position something in its position with various standards used (dhawabith al-awlawiyyat), including: (1) something which has more benefit is prioritized to be done than something which has less benefits. (2) something which has more dangerous, is more important to avoid than less dangerous one, and (3) something that has a short execution time and (3) something that has a short execution time and is required to be done immediately (fauri) is prioritized to be done over something that has a long execution time and is not required to be implemented immediately (tarakhi).
The implementation of the standards (dhawabith al-awlawiyyat) along with other proponents of the distribution of inheritance (tirkah) has created a legal certainty related to the tirkah distribution obligation rules in order of priority (1) the obligation to distribute joint property rights; (2) the obligation to distribute the funeral expenses; (3) the obligation to distribute the cost of paying off debt repayment distribution obligation of the corpse; (4) the obligation to distribute will; and (5) the obligation to distribute inheritance.