Dr. Abid Hussain
This article gives an overview of
the Islamic laws of inheritance with the aim of increasing the awareness of the Muslim
community living in the west regarding this important aspect of Islamic law. The scope of
this article is confined to traditional Sunni Islamic law.
When a Muslim dies there are four duties which need to be performed.
These are:
It is assumed that the preliminary issues have been resolved and we
shall confine ourselves principally to discussing the fourth and last duty. The task is to
firstly, determine which of the relatives of the deceased are entitled to inherit and
secondly, to determine the quantum share entitlement of each of the heirs concerned.
Needless to say Muslims must follow all the commandments of Allah (SWT)
as Allah the Almighty says, "It is not for a believer, man or woman, when Allah and
His Messenger have decreed a matter that they should have any opinion in their decision.
And whoever disobeys Allah and His Messenger, has indeed strayed into a plain error."
[Quran 33:36]
The particular importance of the Islamic laws of inheritance is obvious
from the verses immediately following those verses giving specific details on inheritance
shares, "These are limits (set by) Allah (or ordainments as regards laws of
inheritance), and whosoever obeys Allah and His Messenger will be admitted to Gardens
under which rivers flow (in Paradise), to abide therein, and that will be the great
success.
And whosoever disobeys Allah and His Messenger, and transgresses His
limits, He will cast him into the Fire, to abide therein; and he shall have a disgraceful
torment." [Quran 4:13-14]
The laws of inheritance take on an even greater prominence in Islam
because of the restriction placed by Sharia on the testamentary power of the testator as
we shall see later in this article.
The divine justness and equitability of
the Islamic laws of inheritance have been correctly appreciated by many non-Muslim
scholars such as Professor Almaric Rumsey (1825-1899) of King's College, London, the
author of many works on the subject of the Muslim law of inheritance and a
barrister-at-law, who stated that the Muslim law of inheritance, "comprises beyond
question the most refined and elaborate system of rules for the devolution of property
that is known to the civilised world.1"
To understand the Islamic laws of inheritance as a whole it is
necessary to consider the system of inheritance that operated within the Arabian peninsula
prior to the revelation of the Quranic injunctions on inheritance. Although we do not have
the exact details of the system that operated prior to the Quranic revelations we do know
that the system of inheritance was confined to the male agnate relatives
("asaba") of the deceased. In this old customary system only the male agnates
(asaba) were entitled to inherit. Amongst the male agnates there were rules of priority,
which determined which of the surviving male agnates were entitled to inherit. It is
likely that the rules of priority that operate amongst the asaba in Sharia are a
carry-over of the old customary agnatic system. In Islamic law the son takes priority over
the father who in turn takes priority over the brothers who in turn take priority over the
paternal uncles.
As we shall see the Quran does not expressly state the share of the
male agnate relatives as such, although it does enact that the share of the male is twice
that of a female. The Sunni jurists take the view that the intention of the Quranic
injunctions was not to completely replace the old customary agnatic system entirely but
merely to modify it with the objective of improving the position of female relatives. The
Sunni Islamic law of inheritance is therefore, an amalgamation of the Quranic law
superimposed upon the old customary law to form a complete and cohesive system. The rights
of the asaba were recognised by the Prophet Muhammad (SAWS) himself. Abdullah ibn Abbas
(RA) reported that the Prophet Muhammad (SAWS) said, "Give the Faraid (the shares of
the inheritance that are prescribed in the Quran) to those who are entitled to receive it.
Then whatever remains, should be given to the closest male relative of the deceased."
(Sahih al-Bukhari)
The Shia jurists on the contrary took the view that since the old
agnatic customary system had not been endorsed by the Quran it must be rejected and
completely replaced by the new Quranic law.
By specifying clear cut entitlement and specific shares of female
relatives, Islam not only elevated the position of women but simultaneously safeguarded
their social and economic interests as long ago as 1400 years. The Quran contains only
three verses [4:11, 4:12 and 4:176] which give specific details of inheritance shares.
Using the information in these verses together with the traditions of the Prophet Muhammad
(SAWS) as well as methods of juristic reasoning, the Muslims jurists have expounded the
laws of inheritance in such meticulous detail that large volumes of work have been written
on this subject.
"Allah commands you regarding your children. For the male a share
equivalent to that of two females. " [Quran 4:11]
This first principle which the Quran lays down refers to males and
females of equal degree and class. This means that a son inherits a share equivalent to
that of two daughters, a full (germane) brother inherits twice as much as a full sister, a
son’s son inherits twice as much as a son’s daughter and so on. This principle
is however, not universally applicable as we shall see later in verse 4:12, the
descendants of the mother notably the uterine brother and uterine sister inherit equally
as do their descendants.
"If (there are) women (daughters) more than two, then for them two
thirds of the inheritance; and if there is only one then it is half." [Quran 4:11]
Women in this context refers to daughters. The Quran gives the daughter
a specific share. In legal terminology the daughter is referred to as a Quranic heir or
sharer (ashab al-faraid). The Quran mentions nine such obligatory sharers as we shall see
later. Muslims jurists have added a further three by the juristic method of qiyas
(analogy). So in Islamic jurisprudence there are a total of twelve relations who inherit
as sharers.
If there are any sons the share of the daughter(s) is no longer fixed
because the share of the daughter is determined by the principle that a son inherits twice
as much as a daughter. In the absence of any daughters this rule is applicable to agnatic
granddaughters (son's daughters). The agnatic granddaughter has been made a Quranic heir
(sharer) by Muslim jurists by analogy.
If there is only a single daughter or agantic granddaughter her share
is a fixed one-half, if there are two or more daughters or agnatic granddaughters then
their share is two-thirds. Two or more daughters will totally exclude any granddaughters.
If there is one daughter and agnatic granddaughters, the daughter inherits one-half share
and the agnatic granddaughters inherit the remaining one-sixth, making a total of
two-thirds. If there are agnatic grandsons amongst the heirs then the principle that the
male inherits a portion equivalent to that of two females applies.
"And for his parents for each of them there is one-sixth of the
inheritance if he has a child, but if he does not have a child and the parents are the
heirs then for the mother one-third." [Quran 4:11]
The Arabic word "walad" has been variously translated as
child, son, children and offspring by translators. However, there is universal agreement
amongst the Sunni Muslim jurists that "walad" here refers to any child or
agnatic grandchild (grandchild through son).
If there is a child or agnatic grandchild amongst the heirs then each
of the parents inherits one-sixth. In the absence of a child or agnatic grandchild the
mother inherits one-third, the share of the father is not mentioned under these
circumstances. The father in fact inherits as a residuary (a residuary heir gets whatever
remains of the inheritance after the Quranic sharers have been allocated their shares,
residuary heirs are generally male agnates) under these circumstances.
To these two Quranic heirs, the mother and the father, the maternal
grandmother and paternal grandfather have been added by analogy. The maternal grandmother
substitutes the mother in the latter's absence.
"… but if he has brothers (or sisters) then for the mother
one-sixth" [Quran 4:11]
The consensus of opinion is that the word "akhwatun" used in
the Quranic text means two or more brothers or sisters of any kind. So that any
combination of full, consanguine or uterine brothers and sisters, if two or more will mean
that the mother inherits a one-sixth share.
"And for you there is one-half of what your wives leave behind if
there is no child, but if they leave a child then for you there is one-fourth of what they
leave behind; … " [Quran 4:12]
Again according to Islamic law the word "walad" here is
interpreted as child or agnatic grandchild. The husband, another Quranic heir, inherits
one-half in the absence of a child or agnatic grandchild and one-quarter in the presence
of a child or agnatic grandchild.
"And for them one-fourth of what you leave behind if you did not
have a child, but if you have a child then for them one-eighth of what you leave behind;
…" [Quran 4:12]
This statement gives us the ruling on the share of the wife (widow).
The share of the wife is one-quarter in the absence of a child or agnatic grandchild and
one-eighth in the presence of a child or agnatic grandchild. Two or more wives share
equally in this prescribed share.
Before continuing with the translation of verse 4:12 let us consider a
situation where a woman dies leaving behind a husband and both parents as the only heirs.
The husband inherits one-half of the estate, there is no argument on
this point. However, if we give the mother a one-third share then the father is left with
only one-sixth. Should the male (father) not get twice the share of the female (mother) of
equal degree and class?
This problem arose during the caliphate of Umar ibn Khattab (RA). After
consultation with the learned companions the majority opinion was that the father should
get twice the share of the mother, that is to say, the principle that the male inherits
the share of two females is upheld. The father therefore, inherits one-third and the
mother one-sixth
In light of this ruling the sentence of verse 4:11 on this matter which
reads, "...but if he does not have a child and the parents are the heirs then for the
mother one-third." is interpreted to mean, "...but if he does not have a child
and the parents are the (only) heirs then for the mother one-third."
"And if a kalala man or woman (one who has neither ascendants nor
descendants) is inherited from, and he (or she) has a (uterine) brother or (uterine)
sister then for each of them (there is) one-sixth. But if they (uterine brothers and
sisters) are more than that then they are sharers in one-third (equally)." [Quran
4:12]
The interpretation of the second half of verse 4:12 has been a source
of controversy, one reason being the meaning of the word "kalala". This word
"kalala" occurs only in two places in the Quran [4:12 and 4:176] and on both
occasions regarding inheritance. "Kalala" may mean "one who leaves neither
parent nor child" or "all those except the parent and child". It is
generally taken to mean the former.
It is universally agreed that the siblings referred to in this verse
are uterine siblings (those with the same mother but different fathers).
The uterine siblings only inherit in the absence of any descendants or
ascendants. However, uterine siblings are not excluded by the mother. If there is only one
uterine sibling he or she inherits a one-sixth share. If there are two or more uterine
siblings they together inherit a one-third share equally.
The heirs mentioned in the Quran (mother, father, husband, widow,
daughter, uterine brother, full sister, uterine sister, consanguine sister) together with
the three heirs added by juristic method of analogy (paternal grandfather, maternal
grandmother and agnatic granddaughter) form a group of heirs called Quranic heirs or
sharers (ashab al-furud). These heirs when entitled to inherit are given their fixed
shares and the remaining estate is inherited by the residuaries (asaba).
Under Islamic law some of the Quranic heirs, namely the father,
paternal grandfather, daughter, agnatic granddaughter, full sister, consanguine sister and
the mother, can also inherit as residuaries under certain circumstances.
Certain heirs referred to as primary heirs are always entitled to a
share of the inheritance, they are never totally excluded. These primary heirs consist of
the spouse relict, both parents, the son and the daughter. All remaining heirs can be
totally excluded by the presence of other heirs. There are several rules of exclusion
which determine the exclusion of some heirs by the presence of others. It not possible to
discuss all these rules in an article of this nature but in brief :
a person (e.g. brother) who is related to the deceased through another (i.e. father) is excluded by the presence of the latter,an individual nearer in degree (proximity) to the deceased excludes the one who is remoter within the same class of heirs (son excludes all grandsons),full blood excludes half-blood through father (so a full brother will exclude a consanguine brother but not a uterine brother)
The majority view is that the full and consanguine brother is not
excluded by the paternal grandfather. However, the Hanafi fiqh allows the paternal
grandfather to totally exclude the agnatic siblings.
Heirs may also be prevented from inheriting by disqualification. The
only two practical situations which are causes of disqualification are difference of
religion and homicide.
The Prophet (SAWS) said, "A Muslim cannot be the heir of a
disbeliever, nor can a disbeliever be the heir of a Muslim." (Sahih al-Bukhari)
Generally speaking, and this is also the majority view, a Muslim cannot
inherit from a non-Muslim. Although the Hanafi fiqh does allow a Muslim to inherit from an
apostate.
Allah's Messenger (SAWS) said, "One who kills a man cannot inherit
from him." (Tirmidhi and Ibn Majah)
All the jurists agree that intentional or unjustifiable killing
according to Sharia is a bar to inheritance because if such people are allowed to kill and
then benefit from the estate of the victim, it will encourage incidents of homicide.
It should be noted that only relatives with a legitimate blood
relationship to the deceased are entitled to inherit from the deceased under Islamic law.
Thus, illegitimate children according to Islamic law and adopted children have no part in
inheritance. Incidentally legal adoption as practised in the west is forbidden in Islam.
Under certain circumstances after allocation of the estate amongst all
the heirs with fixed shares there is a residue left over but there are no residuaries.
This residue called al-radd is returned to those sharers who are entitled to it, in
proportion to their original shares. Conversely a situation may arise when the total sum
of the assigned shares of the heirs with fixed shares is greater than unity. In this
situation all the shares are abated proportionately by the doctrine of al-awl which
involves decreasing the fractional shares to a common denominator, and increasing the
denominator in order to make it equal to the sum of the numerators.
The amalgamation of the old customary agnatic law and the Quranic law
has led to a number of problems which Muslim jurists have solved with great ingenuity. I
shall mention one such case which occurred during the caliphate of Umar ibn Khattab (RA).
A woman died leaving behind a husband, mother, two uterine brothers and two full brothers.
Umar ibn al-Khattab (RA) by systematically applying the rules gave the
Quranic heirs their shares, husband (1/2), mother (1/6) and the two uterine brothers
(1/3). The two full brothers acting as residuaries received nothing because there is no
residue. The two full brothers, who would have been the sole heirs under the old customary
agantic system, argued that even if their father was a donkey or a stone cast into the sea
and they had no paternal relationship, they still had the same and equal relationship with
the deceased as the uterine brothers through the same mother. Umar ibn al-Khattab (RA)
reconsidered his ruling and allowed the full brothers to inherit equally with the uterine
brothers in the share of 1/3.
The reader will have noticed that uterine (or cognate) relatives have
not figured in the discussion thus far. This group of potential heirs contains all those
relatives who are neither Quranic sharers nor male agnates and constitute the largest
group within the context of inheritance. They are referred to as dhawu al-arham (or
distant kindred). The majority view is that they are entitled to inherit when there are no
residuaries and no sharers entitled to al-radd. Only the traditional Maliki fiqh does not
allow the distant kindred to inherit, any residue is given to the bait al-mal (public
treasury). The rules of inheritance amongst the distant kindred are relatively complex and
hence not mentioned here.
The Islamic laws of inheritance that have been discussed here can be
legitimately accommodated and practically implemented within many existing western
legislation systems by way of a valid will. In fact for those Muslims living in the west a
will becomes an essential necessity to prevent intestate succession law of the land being
applied to their estate after they die.
The will should comply with the law of the land so that it can be
executed after a person’s death without any unnecessary legal problems. Needless to
say nothing in the will should be contrary to Sharia.
Sharia has placed two restrictions on the testator. Firstly, to whom he
can bequeath his estate and secondly, the amount that he can bequeath. The majority view
is that a bequest in excess of one-third of the net estate is invalid unless consented to
by the legal heirs as is a bequest in favour of a legal heir.
I hope that this article will benefit all those Muslims wishing to
conduct their lives according to the divine will of Allah (SWT).
1. Rumsey, A. Moohummudan Law of Inheritance. (1880) Preface iii
All correspondence to Dr. A. Hussain via e-mail at abidhussain@hotmail.com.
Courtesy : http://www.islam101.com/
Published by :
Courtesy : http://www.islam101.com/
Mr.Mohammed Hussain Assadi &
Mrs.Omairah Mohammed Altao
By: ROAD to Jannah
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