Inheritance Rights Protection for Fetus in Utero Through Trust-like Mechanism as a Normative Solution in Indonesian
Year: 2026
Type: article
Abstract: The regulation of inheritance rights for a fetus in utero has been recognized under the Kitab Undang-Undang Hukum Perdata (KUHPerdata) through the principle of nasciturus pro iam nato habetur, which grants a conditional legal status provided the fetus is subsequently born alive. However, this recognition lacks an adequate legal mechanism to ensure the management and protection of inherited assets during the period when the legal subject is not yet capable of exercising those rights. This study employs a juridical- normative method with conceptual, statutory, and comparative approaches to analyze the normative weaknesses in the existing regulation and to formulate a trust-like mechanism as an adaptive solution within the Indonesian civil law system. The analysis reveals five structural weaknesses in the current regulation: ambiguity in gestational age verification, absence of interim asset management mechanisms, inconsistency with child protection legislation, inadequacy in disputed parentage scenarios, and the non-existence of the curator ventris institution. Drawing on English Trust Law and comparative civil law systems, this study constructs a trust-like mechanism consisting of four operational phases: asset segregation from the estate, appointment of a trustee-analogous manager, prudential asset management, and conditional asset transfer upon fulfillment of legal requirements. This mechanism, grounded in the principles of the nasciturus doctrine, guardianship law, and the general principle of good faith under Indonesian civil law, offers a normative framework capable of bridging the gap between the declarative recognition of the fetus's legal status and the substantive protection of its inheritance rights, thereby enhancing legal certainty and promoting a more adaptive civil inheritance law reform in Indonesia.
Language: English
Topic: Family and Matrimonial Law
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: diamond
OpenAlex ID: W7220193182