Chapter 9: Inheritance

1. Introduction

2. Who are eligible as heirs and what share is due to each?

3. If a person who has a father passes away leaving children. Does the death of the children father deprive those young children of the inheritance which their father would have received, had his father died before him?

4. Can one dispute inheritance on the basis of local laws and traditions, which differ from Allah's law?

5. If a man gifts to any of his children or to his wife, does it effect their share of inheritance when he dies?

6. Who are unlawful co-sharers of inheritance?

7. Is it allowed for one to disinherit one's legal heirs?

INHERITANCE

"It is prescribed, when death approaches any of you, if he leaves any goods, that he make a bequest to parents and next of kin, according to reasonable usage; this is due from the God fearing". "If anyone changes the bequest after hearing it, the guilt shall be on those who make the change. For God hears and knows (all things)". (II : 180-181)

Inheritance is that property and wealth which falls to the lot of the heirs of a deceased person. It plays an important role in the distribution of wealth, because inequitable provisions of inheritance brings about inequality in the society and widens the gulf between the high and the low or the rich and the poor. According to the Islamic law of inheritance the wealth should be kept in circulation as far as possible and not be monopolize by a few individuals.

The basic or fundamental principles of the Islamic law of inheritance are few and very simple. They are:

a)    That so long as a Muslim is alive he has an absolute right of disposing of, or gifting away, his property in any way he likes, but on his death he is entitled to will away to the extent only of one-third of what remains of his property after his funeral expenses are paid and his debts are liquidated.  (The debts include the wife's dowry or "MEHR").

b)    That a male gets one portion equal to twice that of the female, and

c)    That the residue, after the claims of all the egatees are satisfied, goes to the public treasury or "BAIT-UL-MAL" for public purposes such as the maintenance of Muslim widows and orphans and the like. With regard to (a) it may be mentioned here that there is no such thing as a vested interest in the Islamic law of inheritance merely on the grounds of birth. If one of the prospective heirs dies during the life of the testator, his interest in the testators estate dies with him. For instance, if one of the sons of the testator dies during his lifetime the interest of such predeceased for in his father's estate dies with him. The son's surviving child or children, if any, gets nothing. In such a contingency a Muslim can, under the authority vested in him in (a) above, make suitable provisions during his lifetime for such of his survivors as may have suffered simply because of an accident. Failing that he may provide for them out of the one-third of his property, up to which he is entitled to give away on his death-bed.

It may be mentioned that originally these bequests were meant to be given for pious uses only, but a Muslim may divert his bequest to any other use he likes, provided it is not to the prejudice of his heirs. Their consent to be bequest is therefore necessary.

This check has been provided for so that the testator may not be unduly partial to any of his heirs in preference to others.

With regard to (b) which entitles a male to a portion of two females, it may be mentioned that in pre-islamic times not only women but even children were debared from inheriting anything on the ground they only should inherit who were able to war. Islam, however, abolished this inequitable custom and gave women and children their due share in the property of their kindred, but not without the proviso that men (who fought for the defense of their religion and their country) should get twice as much as women. Man's superiority over women has in this respect, been recognized. (IV : 34). Otherwise the Qur'an gives women the same rights over men as men have rights over women (II : 228).

With respect to (c) above which made the Bait-ul-Mal or the public treasury as the resiliency legatee of the estate which remains unclaimed, it may be mentions that it was after all the public money which went to the Public Treasury for the food of the public. We may today boast of our orphanages and widows homes, but Islam provided for them fourteen hundred years ago.

Irrespective of this the Qur'an enjoins that if the poor and the orphans as also the kin, to whom nothing is due, be present, in the hope of getting something, when the property of a deceased Muslim is being distributed, they should be given something or spoken to kindly, if they are dissatisfied. (IV : 8).  

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Question:

Who are eligible as heirs and what share is due to each?

Answer:

Before one goes into the question of inheritance, which has been detailed in the Qur'an, The situation as it existed prior to Islam will be explained.

In the days of ignorance, in pre-islamic Arabia no share of inheritance was given to females, and little if any, was given to young boys. The reason was that neither group could fight against any aggressor. Allah's law, on the other hand, has made inheritance due to all kinfolk, according to their degree of kinship and their shares which will be detailed later. It is the view of Islam that members of the same family should help and look after one another. Everyone is required to look after his relatives when they are in need and share his relatives liability in paying compensation in case of inflicting death or bodily harm in others. Hence, it was only right that he should inherit him, if he leaves some money or property behind, according to his degree of kinship This gives practical effect to the rule which states "Gain is commensurate with liability". Islam is a complete and perfectly coherent system. This quality of the Islamic system appears most vividly in the distribution of rights and obligations.

For all these practical and natural aspects of human life, and for many other social interests. Allahhas laid down the general rule of inheritance:

"From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large - a determinate share". (IV : 7) This is the general principle by which Islam gave women, fourteen centuries ago, the same right is men to have a share f inheritance and by which it has preserved the rights of youngsters, who were treated unfairly in the days of ignorance. The society of ignorance looked at individuals according to their value in war and productivity. Islam, which is a divine method, looks first at the human value of man. This is his .....   value of which he cannot be deprived. His duties and obligations within the family and the community takes a secondary position.

The laws of inheritance has been decreed by almighty Allah in Sura An Nisa (IV : 7 to 12). The Sura IV : II explains the Islamic system of inheritance. It starts with an order, made in the form of a strong recommendation made by Allah to parents, to maintain justice among their children; The Surah states:

"God (thus) directs you as regards your children's inheritance; to the male a portion equal to that of two females; if only daughters two or more; their share is two-thirds of the inheritance. If only one, her share is a half". (IV : II)

This order shows that Allah limitless, He is in His glory is kinder, fairer and more merciful than parents are to their own children. It also shows that the whole system of inheritance has been laid down by Allah who has given His verdict in every issue which concerns parents and children, or may come up among relatives. People have no choice but to receive their orders from Him and to implement His rulings. This is the proper concept of faith and religion which the Surah, in its entirety, seeks to explain in the clearest of terms.

The opening statement also lays down the general principles which pervades the whole system of Islamic inheritance. Details are then provided and shares assigned in the light of the aforementioned general principle. All these details are given in two verses, the first is devoted to inheritance by offspring and by parents from their children, while the second is devoted to the explanation of inheritance of husbands and wives, and in cases when the deceased has no surviving children or parents. A few other rules of inheritance are also explained in the last verse of this Surah.

These three verses provide the foundation of the Islamic system of inheritance, which constitutes a branch of Islamic jurisprudence known as that of "decreed shares". Further elaborations are stated clearly in a number of Hadiths, while certain others have been deduced by scholars on the basis of the principle provided in this verses.

Inheritance of parents and children.

"God (thus) directs you as regards your children's (inheritance) to the male a portion equal to that of two-females; If only daughters, two or more, their share is two thirds of the inheritance; If only one, her share is a half".

"For parents a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third, if the deceased left brothers (or sisters) the mother has a sixth (the distribution in all cases after the payment of legacies and debts.

Ye know not whether your parents or your children are nearest to you in benefit.  These are settled portions ordained by God; and God is All-knowing, All-Wise". (IV:II).

In our last article we discussed the first time in this verse which states a general principle in the Islamic system of inheritance which gives the male a share equal to that of two females. The division of inheritance begins with the shares of offsprings when they inherit their parents. If the deceased has no male issue, but has two daughters or more, his daughters share out equally two-thirds of his estate. If he has left behind only one daughter, she inherits half of what he has left. The remainder goes to the nearest of kin on his father's side i.e. to his father, or grandfather, or his brother, or his half brother on his father's side or to his parental uncle or the children of his grandfather.

The Quranic verse states

"If only daughters, two or more, their share is two-thirds of the inheritance".

Having completed the share of offspring, the verse goes to explain the shares given to the parents when they survive any of their children in all cases whether the deceased has children or not.

There are then, different cases and different shares of parents according to particular situations. The first is that when the deceased leaves behind children of his own in addition to his parents. In this case, each of his parents inherits one-sixth and the remainder goes to his son, or his sons and daughter or daughters, on the basis of a son having a share equal to that of two daughters. If the deceased has only one daughter, she inherits one-half of her father's estate, while each of his parents takes one-sixth and the father takes last one-sixth on the basis of his being the nearest of kin to the deceased. In other words, the father has one portion as an ordained share and another portion for being the nearest of kin taking what remains after those who are given appointed shares have taken theirs. If the deceased has two daughters or more, they take two-thirds and each of his parents takes one-sixth.

The second situation is that when the deceased has neither children, brothers sisters nor spouse. His parents then are his only heirs. In this case the mother inherits one-third as her appointed share, and the reminder goes to his father as his nearest of kin. The father's share in this case is double that of the mother. If the deceased leaves a spouse in addition to his parents, the husband takes one half in the case of the deceased being a woman, and the wife takes one- third if the deceased is a man. The mother takes one third (and here there is a difference among scholars as to whether the mother's share is one-third of the whole estate or one- third of what is left after the deceased's wife or husband has taken their share) and the father takes what is left after the mother has taken her share, provided that the father's share is not less than the mother's.

The third situation is that when the deceased is survived by his parents and brothers whether they are full or half brothers on either the father's or mother's side, they do not inherit any share themselves because their father takes precedence over them and he is the nearest of kin to the deceased after own son. Brother's however, reduce the mother's share by half, from one-third to one-sixth. The father takes the remainder if the deceased has no surviving spouse. If there is only one brother of the deceased alongwith his parents, he does not reduce the mother's share. She receives one-third in the same way as if there were no children or brothers of the deceased.

All these shares, however, are apportioned after the execution of the deceased's will and payment of his outstanding debts.

The will takes precedence over the apportioned shares of inheritance because it represents the deceased's desire. In fact, provision for making a will has been made so that care can be taken of certain cases where some relatives take precedence over others and "screen" (to use the Islamic term) them from inheritance. Those who are screened may be poor and in need of help. Making a will in their favor is one way of helping them. There are other case where the interests of the family are served through cementing relations between the heirs of the deceased and relatives who are not entitled to any share of his inheritance. Bequeathing some money to them by will is certain to remove all cases of enemy, grudge and conflict before they take  oots. We have to remember here that no heir may be given by will anything over his or her apportioned share and that there is a ceiling for what any person may bequeath by will. That ceiling is one-third of the whole estate. Limiting the will in this way is guarantee against any prejudice to the rights of the heirs.

Inheritance of husbands, wives, brothers and sisters.

"In what your wives leave, your share is a half, if they leave no child, but if they leave a child, ye get a fourth, after payment of legacies and debts. In what ye leave their share is a fourth, if ye leave no child, but if ye leave a child, they get an eight, after payment of legacies and debts.

If the man and woman whose inheritance is in question has left neither ascendants or descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts; So that no loss is caused (to any one). Thus is it ordained by God; and God is All-Knowing, Most forgiving". (IV : 12)

In the last part of the verse (IV : I) it concludes :

"Ye know not whether your parents or your children are nearest to you in benefit. These are settled portions ordained by God; and God is All-Knowing, All-Wise". (IV : II)

This comment provides three torches with varying aims. The first touch is meant to help people accept these appointed shared willingly. Some people may be motivated by their parental instinct to favor their own-children over their parents if division of their estate is left entirely to them. This is understandable because there is a natural weakness by a hypersensitive moral feeling towards their parents.

Others ***** between their natural weaknesses and moral feelings. It may happen that the social environment and traditions impose certain considerations similar to those which were voiced by some people when the legislation if inheritance was first revealed. Allah therefore, wants to give all people the reassurance generated by admission to His will and to His legislation by reminding them that His knowledge is perfect, absolute, while people do not know who of their relatives is more benefit to them and which method of sharing out inheritance may serve, their interests best.

The second touch states the principles on which the whole system is based. It is not a question of favoring one person over another or serving a narrow interest. It is all a question of faith and divine law. "These comments are made before the legislation of inheritance is completed so that the whole matter is put in the proper perspective of faith which defines religion as submission to Allah's law and accepting His rulings. The Surah goes into defense other apportioned shares:

"In what your wives leave, your share is a half, If they leave no child; but if they leave a child, ye get a fourth; after payment of legacies and debts. In what you leave their share is a fourth, if ye leave no child; but if ye leave a child, they get an eighth; after payment of legacies and debts". (IV : 12)

These statements are clear and elaborate. A husband inherits half of his deceased wife's property if she leaves behind no son or daughter, her husband inherits one quarter of her property. The children of her children i.e. the grand- children reduce the husbands share from one-half to one- quarter in the same way as her own children. The same applies to her children from an earlier marriage who also reduce her husband's share to one quarter. Her property is divided among her heirs after settling any outstanding debts or executing her will, as mentioned earlier. A wife inherits one quarter of the property left behind by her husband, if he leaves behind no children. If he has a child, a son or a daughter or even more, by her or by any other wife, or even grand-children of his own, then their presence reduces her share to one eighth. Again settlement of debts and execution of a will take precedence over sharing out the property. The share given to a wife remains the same whether the deceased husband leaves behind one wife or two or three or four. All of them share equally in that portion of one quarter or one-eighth as the case may be.

The final role in the second verse outlining the system of inheritance is concerned with a person who leaves no heirs in the direct line.

"If the man or woman whose inheritance is in question, has left neither ascendants or descendants, but has left a brother or a sister, each one of the two gets a sixth; but if more than two, they share in a third after payment of legacies and debts; so that no loss is caused (to anyone). Thus is it ordained by God; and God is All-knowing, Most forbearing". (IV : 12)

This is the case of a person having heirs whose relationship to him is weaker than that of parents and children. Abu-Bakr (the first of the rightly guided Caliphs) was asked to define the Arabic term KALALAH which is used in the Qur'an to refer to such a person. He said "I can give only my ownview. If it is correct, then I am right only by Allah's grace. If it is mistaken, the mistake is mine and caused by Satan. Allah and His messenger are not party to it. KALALAH  is a person who has no children and no parents". When Umar (the second rightly guided Caliph) took over, he said in this connection, "I would be ashamed to contradict Abu-Bakr in an opinion of his".

In fact the most eminent scholars among the companions of the Prophet (PBUH) and those in the next generation and founders of all four major schools of thought and the overwhelming majority of scholars in successive generations subscribe to this definition.

"If a man or a woman has neither ascendants or descendants, but has left a brother or a sister, each one of the two gets a sixth".

What is meant by the deceased having a brother or a sister in this verse is that either of them is only half a brother or half a sister on the mother's side. If they are a full brother or a full sister, or if they are half a brother or half a sister on his father's side, they inherit according to the last verse in this Surah which gives them a portion in which a male takes twice as much as a female. The portion mentioned here of one-sixth to either of them, boy or girl applies only to half brothers and sisters on the side of the deceased mother.

They have an apportioned share which is specified in the Qur'an. They do not inherit on the basis of being the nearest of kin. Had that been the case, they would have taken all the deceased's estate, or what is left of it, after those who have apportioned shares have taken theirs.

"But if more than two, they share in a third". This applies regardless of their number or their sex. The weightier opinion is that they share out equally their total portion of one third although some scholars maintain that the division of the portion must be on the basis of a male taking twice as much as a female. Equal division seems to be the weightier because it is in line with the principle stated in the same verse, giving the male an equal share of the female. "Each of the two gets a sixth".

This means that half brothers and half sisters on the mother's side are different from other heirs on three counts:

i)    The share of males and females are equal among them,

ii)   They have no claim to any part of the inheritance unless the deceased has no parents. If he is survived by his father, grand-father, child or grandchild, they inherit nothing,

iii)  Their total share regardless of their numbers has a maximum of one-third of the estate.

"After payment of legacies and debts, so that no loss is caused (to anyone)". This is a warning against making a will for specific purpose of harming any of one's heirs, thus Islam ensures that a will is made to serve justice and the family's interest. It is worth mentioning again here that settling debts takes precedence of executing the will and both the debt and the will take precedence over sharing out the inheritance among heirs.

This second verse is concluded with a comment which is similar to that of the first (IV : II). "Thus it is ordained by God; and God is All-knowing, most forbearing". Thus the import of this comment is much strongly emphasized. These apportioned shares are given as a commandment from God. They are not the result of any caprice, nor are they swayed by desire. They ****** from perfect knowledge. Hence, they must be obeyed because they are made by the one to whom the right to legislate and apportion totally belongs. They must be accepted because they come from the only source with absolute and perfect knowledge.

***************** (BOOK 6)****************  

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Question:

If a person who has a father passes away leaving children. Does the death of the children father deprive those young children of the inheritance which their father would have received, had his father died before him ?

Answer:

If the uncle (or any) in this case contests the claim of the children to inherit from their grandfather in place of their deceased father, it is his (or any other) right to do so from the legal point of view. The share of the deceased man in his father's estate is not passed on to his children. There can be no inheritance claimed on future events. The grandfather of the children, however, is free to bequeath to them by will an amount of money which may be equivalent to their father's share or may exceed it provided that it does not go above one-third of his total estate. If he does not take that step to bequeath them anything, they are left with nothing.

In order to safe-guard the interests of the grand children a number of Muslim countries have incorporated in their family laws the principle of "COMPULSORY WILL" advocated by IMAM IBN HAZM, who was a great scholar and an Imam in his own right.

This principle states that for the grandfather to bequeath the children in this case by will is not a matter of choice. It is compulsory, whether the grandfather actually makes a will in favor of his grand children after the death of their father or not, such a will is assumed to exist. It gives the children the lesser of the two amounts, the share of their deceased father had he survived his own father, or one third of the estate of their grandfather. This provides an equitable solution for all.

While the uncle (or any relative) of the children may be acting strictly within the law, he is not acting humanly. He is better advised to look at his nephews (or the children) as he looks on his won children. Who knows that his own children may be in the same position, if he were to die before his own father.  

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Question:

Can one dispute inheritance on the basis of local laws and traditions, which differ from Allah's law ?

Answer:

People can choose whether they want to conduct their affairs according to the law of Islam, or to some other law, be it local tradition, custom or any other form of man made law. If they opt for tradition and human law, they cannot claim to be Muslims. It is not sufficient for a person to declare that he believes in the oneness of Allah and the message of Mohammad (PBUH) without giving practical effect to that declaration. The practical effect can only take the shape of abiding by Allah's law and implementing it whenever and wherever it lies in his power to implement it. Let us suppose that in a case of inheritance, the matter is put to a court of law in an Un-Islamic society and the verdict of the court gives a certain person a much larger share than that to which he is entitled under the Islamic law of inheritance. Does this judgement make it lawful for his to take the extra share ? The answer is decidedly in the negative. What he has to do is to go to the other heirs who receive, under the court judgement less than their rightful shares and give them all the extra share he has received over and above that to which he is entitled under, Islamic law. The Prophet (PBUH) tells us in very clear terms that this is what we must do. He says "you come to me for judgement and some of you may be more eloquent in putting their case than others. I am only a human being. If by my judgement I give a verdict in their favor. They may have certain documents, or they may conceal other documents. The other party in the dispute may not be able to put his case properly for a variety of reason. No judge can always know the rights and wrongs in every case put to him. He has to base his judgement on the evidence presented to him. This means that he is liable to make errors because the evidence may not be complete or may be put to him unfairly. The parties to the case should know their rights as they are. If one of them feels that he has been given a judgement which allows him more than his right, then to take what exceeds his right is to take a brand of fire in his hand. He will not escape the fair judgement of Allah.

It some countries such as Pakistan, Syria, Egypt and parts of the Arab World some local customs of inheritance are practiced which do not conform with Islamic law, for example, women are not given any share of the inheritance. The whole idea seems to be borne by the great value peasants, farmers and land-lords attach to their land. They want to keep it within their own family, and do not wish any part of it to go to other families through the marriage of their daughters. You will hear people say that if they allowed their daughters a share of their inheritance, theirs land would go to strangers. They forget that in Islam, a woman is entitled to all rights of ownership and to the right of looking after what she owns and to invest her money and exploit her land as she desires. Her husband cannot dictate to her in any of these aspects. Hence, when a woman inherits part of her father's property, she enjoys a better position in respect to her husband's family. No one may be grudge her rights. There are numerous cases where families would have been saved from ruin if only the woman had some property of her own. How many times a father is incapacitated by illness or dies leaving behind a widow who may still be in the prime of her life and has very young children. If she has property of her own, she would be able to look after her children well. If she is deprived of her inheritance, she and her children may face a very bleak prospect.

The overriding point, however, is that Allah's law should be implemented. People will be rewarded when they abide by it. They will gain instead a much greater reward. They will gain the reward which Allah will give to them for willingly abiding by His law. He will bless them and their children and their property for that.  

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Question:

If a man gifts to any of his children or to his wife, does it effect their share of inheritance when he dies?

Answer:

It is open to a Muslim man to spend his money for whatever purpose he wishes provided that he does not contravene the teachings of Islam and he does not cause any injustice to anyone who has a claim on him. It is permissible for a man therefore, to buy  a house or a plot of land or a car or anything of like nature and present it to his wife or his child, provided that in doing so he does not unjustly treat another wife of his or his other children. What this means in effect is that if he has more than one wife, he should not exceed the limits of fair and equal treatment of his wives. If he has more than one child, he should treat all of them equally.

If the man gives such a present in order to evade the claim of any of his other heirs, such as his other wife or other children, then he is doing something which is unacceptable.

If there is no element of injustice in the whole affair, a person who is of sound physical and mental health may dispose his money as he likes. There will be no effect of any gift made in this way on the shares of inheritance because the case of inheritance does not arise until the man dies. Before his death, his money is his to dispose of as he likes, and none of his heirs has any claim to his particular share. The only claim is that of supporting his dependants, which include his wife, young children or parents who do not have an income of their own, or unwed sisters and young brothers of their parents are died and cannot support themselves.

If a person makes such gifts in his will, he must be careful, we are not allowed to bequeath by will to our rightful heirs. If we want to do that, we can only give them what they will be entitled to have according to the rules of inheritance which are very specific in Islam. It is useful to mention that a person is allowed to leave by will up to one third of his wealth provided that he does not give any of his heirs any added share. This is due to the Hadith which states categorically "No heir may be given anything by will".  

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Question:

Who are unlawful co-sharers of inheritance ?

Answer:

The answer is simplified as under:

i)          One who has murdered his predecessor willingly or unwillingly is not entitled to a share in inheritance. (Reported by Abu Huraira and quoted by Tirmidhi),

ii)         Those who have different religion, cannot become lawful heirs of the deceased. (Reported by Usama bin Zaid and agreed upon by all) and Similarly the people of two different religion shall not inherit from one another (quoted by Ibn Majah). Though it is valid for one to bequeath to one of another religion from the maximum of one-third allowed for willingly by an individual.

iii)        A fugitive slave who has fled away from his master cannot inherit the property of deceased.

iv)         The bastard (illegitimate) child shall not inherit nor be inherited. (Reported by Amr bin Shuaib and quoted by Tirmidhi).

v)          Adopted children cannot inherit.  

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Question:

Is it allowed for one to disinherit one's legal heirs?

Answer:

It is certainly forbidden for one to either disinherit one's legal heirs or to arrange in a manner prior to his death, that the legal heirs do not inherit or to try and deprive the children of their rights of inheritance. We can appreciate this letter when we remember that according to Islam  we do not "OWN" our money, we are simply put "incharge" of it. When we die, it goes beck to Allah, its owner, who distributes it to our heirs, according to the shares He has appointed for everyone of them. It is not permissible for anyone to try to evade this system set up by Allah in order to deprive any of his heirs of his or her rightful share.

If gifts are made during one's life time with the intention of evading the natural laws of succession, it becomes very difficult for heirs to fight this in a court of law. A judge will only rule on the basis of evidence, and if gifts and presents are made with the necessary documentation, and this satisfies all legal requirements, he cannot ignore it and decide in its favor.  

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