Islaamic Shariah Rules of Inheritance and Its Distribution!

By: Shahid Bin Waheed شاهد بن وحيد

بسم الله الرحمن الرحيم

الحمدلله رب العالمين والصلوة والسلام على اشرف الانبياء وسيدالمرسلين نبينا محمد صل ا لله عليه وعلى آله واصحابه وازواجه اجمعين - امابعد

All the praises and thanks be to Allaah, Sustainer of the Universe, and blessing and salutation to be the most distinguish of the Messengers and foremost among the Prophets, our Prophet Muhammad, peace and blessings of Allaah be on him and on his wives, children and Companions.

Whatever does a person own at the time of his or her death (wealth or property, moveable and/or immoveable, cash, jewellary, clothes, virtually everything big or small; even an ordinary needle and thread) come under his or her inheritance (Turka تركه) according to Shariah شريعه? This also includes clothes the deceased was wearing at the time of death. In addition of that, any loans given by the deceased to someone, which remain unrealized but are received after the death of the deceased shall also be counted as part of total inheritance.

There are four claims (rights) on the total inheritance of the deceased in the order given below. Their disbursement, in accordance with the rules laid out in the Shariah شريعه, is Wajib واجب (obligatory). This must be done faithfully and precisely by the inheritors. The Shariah شريعه rule is so strict that nobody is permitted even to take out a piece of gum (and put it in his or her mouth) that is lying inside the pocket of the deceased unless one has the expressed permission of the sharers of the inheritance, for that gum is not the share of one person alone.

The four claims or rights are:

1. The preparation of deceased by bathing and shrouding.

2. The financial claim or debt owed by the deceased to someone.

3. The valid will or testament made by the deceased.

4. The distribution of inheritance among inheritors.

That means the expenses on the bathing; shrouding and burial should be paid from the estate and/or inheritance as a matter of first priority. What remains should be used to pay off all debts owed by the deceased. Then, what remains should be applied against any valid will made by the deceased, which should not exceed the limit of one-third. After that, the remaining two-third of the inheritance should be distributed among all inheritors in accordance with the shares fixed by the Shariah. If the deceased had no debt to pay back, nor had he made a will about the inheritance, then, whatever of inheritance remains after paying for the bathing, shrouding and burial, will all belong to the inheritors, who will inherit it in accordance with the shares fixed by the Islaamic Shariah شريعه.

· Things not included under inheritance?

· Any pension received after death is not included in the inheritance?

· Some possessions of the deceased are also not included in his/her inheritance?

· What has been set-aside for a particular person during one’s lifetime is included in inheritance?

· Paying debts owed to Allaah? *

· Valid and Invalid Will, if any?

· Fidya of prayers and/or fasts? *

* The two in red in my opinion are something in every case makes a difference.

There are four rights that must be fulfilled in respect of the estate of a deceased Muslim. It is necessary that the correct sequence of fulfilling these rights be carefully upheld. These four rights are as follows:

1. That the expenses for the necessary requirements from the time of death until completion of the burial be drawn as a first charge from the estate.

2. Thereafter, from the remaining Tarakah (estate) all debts including unpaid Mah-r (dowry) shall be paid. Both, or either one, of these debts shall be second charge to be drawn from the estate (Tarakah).

3. Thereafter, any Wa’siyah (testament or bequest) in favor of non-heirs shall be fulfilled from one-third (1/3) of the Tarakah (remaining estate). This due and liability shall be third charge drawn from the remaining estate. {Islaamic Shariah only allows a Wa’siyah in one third of the Tarakah (remaining estate). The Shariah disallows any portion of Wa’siyah, which is in excess of 1/3 (one third) of the Tarakah. This Wa’siyah shall be a first charge to be paid before the rightful inheritors receive their share from the Tarakah.}

4. Lastly, the Tarakah (final residue) of the estate shall be distributed among the rightful heirs of the deceased Muslim according to the law of inheritance specified by the Glorious Qur’aan, Sunnah, and Ijmaa.

Factors that may prevent inheritance! The following four factors that prevent inheritance.

1. To be a slave, whether this status of being a slave is in the fuller sense of the word, or even the status of being a Moekaatab (a slave who shall be free upon the death of the master). This rule is applicable even though the slave has an agreement with the master for payment of compensation to gain freedom, or where the slave (female) becomes an Umm-e-Walad (a mother of master’s off-spring).

2. To be guilty of an assassination by which one shall be liable for compensation, or when one should deserve the death sentence.

3. To be an adherent of other religion/s.

4. When a person who recently embraced Islaam choose to reside in and remain as domiciled of separate and different religious state/s.

Three conditions of Miraath (Inheritance)!

1. It must be established with certainty that the Mowrooth (deceased person from whom inheritance is to be received) has died and/or has been decreed by a Muslim Qazi/Qadhi (Judge) to be among those who have passed away.

2. It must be established with certainty that the Waarith (heir) is alive after the death of the Mowrooth, or that by positive signs and calculations determine that the heir is among those who are alive (for example a living fetus). In addition one also must have the knowledge of the status of the heir in respect of being eligible to receive inheritance.

3. Rightful position of an heir in respect of the relationship between Waarith and Mowrooth must be known.

The shares which have been fixed in the Glorious Qur’aan are SIX

1. One half (1/2)

2. One quarter (1/4)

3. One eight (1/8)

4. One third (1/3)

5. Two third (2/3)

6. One sixth (1/6)

There are twelve (12) categories of person who shall receive a share of inheritance according to their status in the relationship with a deceased Muslim. Four among twelve are males,

1. The father

2. Paternal grandfather or paternal great-grandfather, or even any paternal father above them in the lineage.

3. Stepbrother from the same mother.

4. Husband

Eight persons out of twelve are females who qualifies to be heirs, they are:

1. Wife

2. Daughter

3. Sister from the same parents

4. A daughter of a son or even a daughter from a son’s son (granddaughter)

5. A stepsister from the same father

6. A stepsister from the same mother

7. Mother

8. A parental grandmother

Following are the proportions which the rightful heirs would qualify for:

An Ni’sf (those persons who shall receive a half share) a half share shall be due to five types of person among inheritors:

1. A husband, if the deceased Muslim does not leave any walad (sons or daughters), or any walad in any succeeding generation.

2. An only daughter (as a sole survivor).

3. A son’s daughter, if she is the sole survivor and there are no other heirs in the generation between her and the Maiyyat (deceased person).

4. A sister from the same parents, if she is the sole survivor and there are no other daughters or even a son’s daughters.

5. A sister from the same father, if she is the sole survivor. Such a person shall only receive a share when there are no other heirs at all among the direct (first generation) offspring of the Maiyyat (deceased Muslim).

Ar Roub-u (those persons who shall receive a quarter share) a quarter share shall be due to two persons amongst the inheritors:

1. A husband, if the deceased has a walad (son or daughter), or even son’s sons in any generation.

2. A wife, if the deceased does not have any walad or paternal grandson or granddaughter in any succeeding generation.

Ath Thoemoun (those person who shall receive one eighth share). 1/8 share shall be due to only one of the rightful inheritors. This is the wife of the deceased has a walad (son or daughter, or son’s son or any daughters from any succeeding generation). This rule will apply whether she is the only wife, or there are other wives.

Ath Thoelouthaan (persons who shall receive two third share) a 2/3 share shall be due to four of the rightful heirs:

1. When there are only two daughters.

2. When there are only two paternal granddaughters (without any daughters of the deceased).

3. When there are two sisters from the same father and mother, without anyone else from among the daughters or paternal granddaughters of the deceased.

4. When there are two sisters from the same father, without any male inheritor in all the aforementioned cases.

Ath Thoelouth (persons who shall receive one third share) a 1/3 share shall be due to two of the rightful inheritors:

1. A mother.

2. When there are two or more awlaad (step children), from the same mother, whether they are male or female.

As-Soedous (those persons who shall receive one sixth share) 1/6 share shall be due to seven of the inheritors:

1. A father.

2. A paternal grandfather (or a paternal great grandfather, or grandfathers above in lineage). This share would be on the condition that the deceased has a son or a paternal grandson.

3. A mother, on condition that the deceased has a son or a paternal grandson as an heir. This rule will also apply if the deceased leaves two or more brothers or one or more sisters.

4. A paternal grandmother, (father’s mother).

5. An only stepchild from the same mother (as a sole survivor).

6. The paternal granddaughter from a son, when she is alone with only one other daughter of the deceased.

7. A stepsister from the same father when there are other sisters from both parents with her.

Hiejb (to be deprived from inheritance or excluded from being heirs)!

Hiejb is that situation where a particular person is prevented from receiving, or deprived from a portion of inheritance or even a total rightful share of inheritance. This aspect initially comes into effect by the presence of certain other heirs. There are two types of Hiejb:

1. Hiejbou Noeqsaan! This is when the share of an heir is reduced by the presence of another heir, e.g. the reduction of the share of a husband from half to a quarter. This rule applies because of the presence of a child from that particular Nikaah.

2. Hiejbou Hier-maan! This is when an heir is deprived of a complete share in inheritance due to the presence of another inheritor, e.g. the share of a brother’s son (paternal nephew) shall be waived due to the presence of a brother on the deceased.

NOTE: There are many other issues and things that play an important role in the outcome of the disbursement of inheritance. I will briefly mention few points:

1. The pension received after death in not included in inheritance.

2. Some possessions of the deceased are also not included in his inheritance.

3. What has been set-aside for a particular person during the lifetime is included in the inheritance.

4. Payment of debts also includes paying the debts owed to Allaah (SWT). That in my personal opinion majority of Muslims owes.

5. If, after payment of funeral expenses, the remaining inheritance is good enough to clear all outstanding debts, then all debts should be paid off without any discrimination. In case, it is not enough and the debt has to be paid to one single person, then whatever on inheritance remains, after defraying the cost of the funeral, should be given to him. As for what remains unpaid, it shall be up to him, he may forgo and forgive it if he so chooses or he may postpone it for settlement in Akhirah (Mufidul-Warithin, p. 38)

In conclusion, I must assert that the above is the brief account of the Islaamic Shariah rules of inheritance and distribution. Readers must note that each and every case is different and unique and requires deliberation accordingly.

Monday, December 20, 2004

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