LAW OF INHERITANCE

LAW OF INHERITANCE

By

Lubna Toheed

Nahid Anjum

KEYWORDS:

Table of contents

1.     Introduction

2.     Definition of Inheritance

3.     Will

3.1.        Will vs Inheritance

3.2.        General rules of will

4.     General Rules for Inheritance

4.1.        Conditions necessary before Inheritance

4.2.        Inclusion

4.2.1.           Causes of Inheritance

4.2.2.           Basic principles for inclusion

4.3.        Exclusions

4.3.1.           Impediments of Inheritance

4.3.2.           Rules of Inclusion between Muslims and non-Muslims

4.3.3.           Rule of exclusions.

5.     Tarikah & Its Procedure

5.1.        Tarikah left behind

5.2.        Procedure for distribution of estate

6.     Inheritors and their classification

6.1.        Ishab-ul-Furud

6.2.        Al-Asbat.

7.     Summary

8.     Bibliography

1.             Introduction

Inheritance is an integral part of Islamic Shariah Law and its application in Islamic society is a mandatory aspect of Devine teaching of Islam.

Muslim inherits from each other is proven from Quran:

“There is a share for men and a share for women from what is left by parents and those nearest related, whether, the property be small or large - a legal share.“ [An-Nisa 4:7]

Inheritance Laws also deals with distribution of one’s wealth after he/she expires. It deals with two key issues:

1. Provide laws pertaining to distribution of wealth amongst heirs, so heirs don’t fight.

2. Ensure that a just system can be established and the wealth is not accumulated into single entity.

2.             Definition of Inheritance.

The word "irth" means inheritance, heritage, and bequest. The word “mirath”  also means inheritance. It is derived from “waritha” which means mainly “to inherit”. The person who inherits is called "Warith", i.e. heir, inheritor, successor .

Inheritance is the transfer of legal ownership of a deceased’s assets to his heirs

3.             Will

3.1.                Will  vs Inheritance.

In Islamic Law, the inheritance from the deceased person is defined by Shariah Law. However, a person is entitled to make his own will for 1/3 of his wealth/assets. Hence:

·                 2/3 of wealth/assets are distributed based on Shariah Law. This is called “meraas”.

·                 1/3 of wealth/assets are distributed based on Person’s Will, if he chooses to write his will. This is called “Al-Wasiyyah”.

Shariah has placed two restrictions on Testator ( one who make Will):

1. Firstly, to whom he can bequeath his wealth/assets

2. Secondly, the amount that he can bequeath (which is 1/3 of overall)

It is important for Muslims to write their wills, as the Prophet (pbuh) said:

Narrated Abdullah bin Umar: Allah's Apostle said, "It is not permissible for any Muslim who has something to will to stay for two nights without having his last will and testament written and kept ready with him." [Sahih al-Bukhari]42

3.2.                General Rules of Will.

General Rules of Wassiyah are following:

1. Person Will should not exceed 1/3 of his entire estate.                      

2. Will cannot be given to a person who is already a heir.

3. Will cannot be given towards a non-Shariah Compliant activity or fund.

4.             General rules for inheritance.

4.1.                Conditions necessary before Inheritance.

Before any execution of Will and Inheritance, following conditions are essentials:

1. Death of the porosities

a. Death must be proven

b. Either physical death (de facto) or legal death (de jure) as in case of missing person.

2. Heirs must be alive

a. Only heirs alive are entitled to inheritance

b. If an heir dies before distribution of inheritance, then his portion is taken by his inheritors.

c. Unborn child in fetus (embryo) will inherit if he is born alive.

3. Estate or property must be left by the deceased.

4.2.               Inclusions.

4.2.1   Causes of Inheritance.

There are three causes a person or claimant is considered as lawful claimant of inheritance:

1. Marital tie (Nikah)

2. Blood Relation (Nasab)

a. In Sunni Islamic Law, it relates to paternal connections only

b. Illegitimate child are not considered lawful inheritors

3. Association or friendship bond (Wala): this is further divided into two by Hanafi jurists:

a. Wala Al-Itaq or Mawla Al-Itaq( master of the manumitted slave)

b. Wala Al-Mawala or Mawla al-Mawala(inheritorsuccessor by contract)

 A heir may have more than one causes of inheritance, e.g. husband who inherit fixed share and may also be an agnatic cousin

4.2.2     Basic Principles for inclusion

The basic principles of Inheritance are fifteen, 7 of them are in Quran and 5 are described in Sunnah, and 3 are based on Ijma/Qiyas

 Group of SEVEN whose share is defined in Quran:

1.               The children (male/female) of the deceased

2.               Parents of the deceased when deceased have children

3.               Parents of the deceased when deceased do not have children

4.               Husband

5.               Wife (wives) / Widow

6.               Uterine Bothers on Mother‟s side

7.               Full Brothers

FIVE from Sunnah:

1.               The Wala (Friendship bond)

2.               Sisters become (al-Asabah) “Residuary” inheritors. They get what is left over after the other heirs take their Primary Heirs.

3.               Relatives (based on hadith: “you give fixed sharers (or Primary Heirs) to the ones who are entitled, what they leave will go the nearest male relative)

4.               Grandmother gets 1/6 (based on “give the grandmothers a sixth.

5.               Sister (based on hadith “give the daughter 1/2, the granddaughter 1/6 and what is left will go to the sister)

THREE from Consensus (Ijma):

1.               Consensus on treating grandson as son, granddaughter as daughter provided later is nonexistent.

2.               Grandfather is treated as father, when father is nonexistent

3.               Sister on father’s side is taken as sister of both sides (father and mother)

4.3.                Exclusions

4.3.1   Impediments to Inheritance:

There are four causes that impede a person from inheritance:

1. Homicide (al-Qatl): Prophet (pbuh) said: “One who kills a man cannot inherit from him” [Tirmidhi, Ibn Majah]43. Hence, all Jurists agree that murderer or killer shall not inherit from victim. There are exceptions to this rule if killing is justifiable or self-defense or war or unintentional etc.

There are slight differences of opinion amongst four fiqhs on details of some form of killing.

a. Hanafi fiqh states that killer is barred from inheritance except if i) its justifiable killing according to Shariah, ii) killing in self-defense, iii) Lawful killing, iv) act of a mad man or minor, v) indirect killing. vi) direct killing by minor or lunatic

b. Shafii fiqh states all forms of killing is a bar to inheritance including killing by minor/lunatic.

c. Maliki fiqh states killing is a bar to inheritance including killing by minor/lunatic except if i) justifiable killing according to Shariah, ii) killing as a result of self-defense, iii) killing in retaliation, iv) unintentional killing.

d. Hanbali Fiqh states that any killing that is punishable (including Qisas) is a bar from inheritance except if i) justifiable killing according to Shariah, ii) killing as a result of self-defense or war, iii) killing in retaliation

2. Difference of Religion: Prophet (PBUH) said: “A Muslim cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim”.

 [Sahih al-Bukhari, Sahih al-Muslim, Muwatta, Tirmidhi, Abu Dawud and Ibn Majah].

3. Slavery: All Jurists agree that slavery is a bar to inheritance. A slave will not inherit and will not be inherited.

4. Difference in Country: Resident of Dar-ul-Kufr doesn‟t not inherit from citizen of Dar-ul-Islam. However, the contemporary scholars applied these impediments to non-Muslims only.

4.3.2   Rule of Inheritance between the Muslim and non-Muslim:

Narrated Usama bin Zaid (ra), Prophet (pbuh) said:

 “A Muslim cannot be the heir of a disbeliever, nor can a disbeliever be the heir of a Muslim”

 [Bukhari, Muslim, Muwatta, Tirmidhi, Abu Dawud, and Ibn Majah]

 There are two situations with relates to this:

1. Muslim person inheriting from non-Muslim

2. Non-Muslim person inheriting from Muslim.

According to above hadith, it is prohibited in both of these cases to do inheritance between Muslim and non-Muslim. There is consensus amongst all four Sunni Madhahib on this point.

4.3.3   Rules of Exclusions

A potential heir can be excluded from inheritance in following ways:

1.               Never Excluded

2.               Partially Excluded

3.               Totally Excluded

4.               Converted into Residuar

Never Excluded

Ø    Out of twelve primary heirs, five of always get their shares and seven of them some time are left out.

Ø    Five heirs are never excluded from their share; however their share may be reduced. These five includes:

1. Father         2. Mother      3. Husband     4. Wife (wives)                        5. Daughter (s)

Ø    Ironically, the son is not mentioned in Quran as a primary heir and he always inherits as residuary. Son is a residuary and he always gets his share as a residuary.

Partially Excluded

Ø    Partial exclusion means that their shares are lessoned, but not totally removed, e.g. Husband’s share is 1/2 if there are no children. However this share is reduced to 1/4 if the deceased wife has children.

Ø    Five primary heirs that can be partially excluded are:

1.    Husband (originally gets 1/2, can be reduced to 1/4, if wife has children)

2.    Widow (originally gets 1/4, can be reduced to 1/8, if husband has children)

3.    Mother (original 1/3, reduced to 1/6 if deceased had child or brother or sisters)

4.    Son‟s Daughter (originally 2/3, reduced to 1/6, if deceased has daughter)

5.    Half Sister on Father‟s Side(originally 2/3, reduced to 1/6 if deceased has full sister)

Totally Excluded

Ø    Total exclusion means that their share is completely eliminated or they lose their share.

Ø    Some of the heir’s can be totally excluded in the presence of other heirs of the deceased. These include:

1.              True Grandfather (if father is present)

2.              True Grandmother (if father is present)

3.              Son’s Daughter (if son is present)

4.              Full Sister (if deceased have descendant’ or father)

5.              Half Sister on Father’s Side (if deceased have descendant’ or father)

6.              Half Brother on Mother’s Side (if deceased have descendants’ or father)

7.              Half Sister on Mother’s Side (if deceased have descendant’s or father)

Ø   The exclusion is based on following principles:

1. Principle of Impediment: When a potential inheritor is connected to the deceased through another person and if that person is present or alive, then the potential inheritor is impeded by that other person. E.g. Grandson is impeded from inheritance if the son is present.

2. Principle of Nearer in Relation: The person nearer in relation can deprive the person who is farther in relation to the deceased. This rule is more applied in case of Al-Asabah.

Converted into Residuary

 Some primary heirs can be converted into Residuary (secondary heir) under certain conditions. They include:

1)Father          2) True Grandfather   3) Mother       4) Daughter    5) Son’s Daughter

6) Full Sister    7) Sister from Father’s Side

5. Tarkah and its procedure.

5.1. Tarkah – Left behind Estate

Tarikah  can be defined as gross estate of the deceased prior to deduction of rights and claims attached to it.

1. The Estate includes:

a. All property, movable/immovable, self acquired/ancestral etc.

b. All Debts

c. All peculiar rights (contracts, options, compensations)

d. Blood money (Diyah), if the person deceased was killed

2. Life insurance is not considered part of estate, as life insurance is considered haram in Shariah.

3. Legal Heirs inherit the estate based on Islam Law of Inheritance.

4. Two opinions:

a. Hanafi fiqh says that part of the state covered by debts and bequests/legacies doesn’t devolve upon the heirs

b. Shafai/Hanbali fiqh said that whole estate including the indebted part devolves upon heirs

c. This may become important if value of estate increased from time of death to actual distribution

5. After the death of a person, his estate is distributed based on following four stages in same sequence.

6. In some Muslim Countries (like Malaysia), the issue of jointly acquired property is to be settled prior to any distribution of the state.

5.2. Procedure for distribution of Estate

There are four stages that follow after the death of a person:

1.               Pay his/her funeral and burial expenses

2.               Pay his/her debts

3.               Execute his Will/bequest (max 1/3 of his/her property)

4.               Distribute remainder of his/her estate/property according to Islamic Shariah Law

6. Inheritors & their classification.

Beneficiaries from the Legal heirs are in two categories:

1.               Ashab-ul-Furud : Obligatory Sharer or Primary Heirs with fixed shares or Quranic heirs

2.               Al-Asabat : Residuaries by reason of blood relationship or special reason

1.Sharer- Ashabul Furud
First give ashabul-furud their share	If anything left after giving Ashabul-furud, then Al-Asabat will get their share.
NINE from Quran: Male: ■ Father ■ Husband ■ Uterine Brother (brother from mother full or half) Female: ■ Mother ■ Widow ■ Daughter ■ Full Sister ■ Consanguine sister (half sister from father) ■ Uterine sister (half sister from mother) THREE from Qiyas (analogy) and Ijma (Consensus) ■ True Grandfather (father‟s father or how ever high in chain ■ True Grandmother ■ Son‟s daughter (However low in chain)	Asabat  means “residuaries” are of two categories: ■ Nasbiyyah : Blood relation ■ Sababiyyah : Special cause Asabat Nasbiyyah: ■ Al-Asbah binafsihi ■ Al-Asbah bighayriha ■ Al-Asbah ma‟a ghayriha Asabat Sababiyyah:: ■ By special reason (e.g. Mauwla al-itaq) ■ By contract (Mawlaul-Mawala ■ Distant kindred (dhawal-arham) ■ Acknowledged kinsman (Al-Muqirr Lahu) ■ Universal Legatee/tesatee (Al-Musa Lahu) ■ Public treasury Al-Asbah binafsihi : ■ Descendants of the deceased  ■ Ascendants of the deceased  ■ Descendants of the father ■ Descendants of the grandfather Female Agnates residuaries: ■ Daughter ■ Daughter of Son: (however low in chain)  ■ Full Sister  ■ Consanguine sister

6.1. ASHAB-UL-FURUD

6.1. Obligatory (Primary heirs)

Ashab-ul-Furud  means “possessors of obligatory share”. These are the family members with fixed shares whose share is exclusively set by Quran. Hence, they are called Quranic heirs or Obligatory shares. These are clearly stated  in Surah Nisa (verses 4:11-4:12 )

 All together there are twelve primary heirs, nine are mentioned by Quran and three are added by Fuqaha using Qiyas (Analogy). These include:

NINE from Quran (3 males, 6 females):

1)Father          2) Husband     3) Uterine Brother (brother from mother full or half)        4) Mother

5) Widow        6) Daughter    7) Full Sister    8) Consanguine sister (half sister from father)

9) Uterine sister (half sister from mother)

THREE Heirs from Qiyas (analogy)

1)     True Grandfather (father‟s father or how ever high in chain)

2)     True Grandmother

3)     Son‟s daughter (However low in chain)

Each of these heirs are entitled for their fixed share, however, the actual share may fluctuate depending upon number of inheritors. The fixed shares for these primary heirs are as follows:

Quranic Share

1/2 Share

·               Husband (if no child),

·              Daughter (if only one),

·              Full Sister

·               Half-Sister on Mother’s side

¼ Share

·                 Husband (if with child)

·                 Wife (if no child)

2/3 Share

·                 Daughters (if more than one),

·                 Daughter of Son (however low in chain, e.g. grand daughters),

·                  Full Sister (if more than one)

·                  Half-Sister on Mother‟s side (if more than one)

1/3 Share

 ■ Mother (if there are no child or their descendants)

·                  Half Brother on Mother’s side

·                   Half-Sister on Mother’s side

1/6 Share

·                 Father or True Grand Father (if there is no father)

·                 Mother (if there are child or their descendants) or  True Grand Mother (if there is no mother)

·                 Daughter of Son (if they share with Daughter),

·                  Half Brother on Father’s side

·                  Half-Sister on Father’s side

6.2. Shares of the Primary Heirs

A.Parents:

1.               Parent’s share is clearly identified in Quran:

 “For parents, a sixth share of 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 is) after the payment of legacies he may have bequeathed or debts.(4:11)

a)               Father

Only the real father is considered as primary heir.

1. As primary heir Father gets 1/6, if there is:

·                 Sons or

·                 Son’s Son (however low in hierarchy)

2. As Secondary (Residuary) heir (whole or 2/3)

a.               Father becomes a secondary sharer if has:

·                 No child,

·                 No Son’s Son (however low in hierarchy),

·                 No Son’s Daughter (however low in hierarchy)

b.               If father is the sole heir, he gets the whole estate.

c.                If father/mother is sole heirs, then mother gets 1/3 and father gets 2/3.

3.Father becomes primary and secondary heir both when:

·                Has no son, and no son’s son (however low in hierarchy),

But if there is:

·                Daughter  or  son’s daughter (however low in hierarchy)

Father will get is usual 1/6, and then after the distribution of others, he will get the remaining of the estate

Exception:

1. when father inherits with mother and spouse

a. If father inherits with spouse (widow or husband) and mother, then spouse gets their fix share.

b. Spouse share is (husband 1/2, widow 1/4)

c. Whatever residue remains parents takes their share from it.

d. This is based on decision of Umar bin Khattab (ra) who actually based his opinion on Zaib bin Thabit (ra)

Husband: ½	Father: 1/3	Mother: 1/6
Widow: ¼	Father: ½	Mother: 1/4

e. This is an exception to ensure that father doesn‟t get less than mother.

2. Father can totally exclude ( ) other potential heirs when he is present at inheritance, these include:

a. Grandfather (however high in hierarchy) & Paternal grandmother (however high in hierarchy)

b. Brothers (full or half both mother/father side) and Sisters (full or half both mother/father side) c.Uncles and their sons

 b) Mother

 Only the real mother is considered as primary heir. She always gets a fixed inheritance share (expect any legal impediment blocks him). However, her share can be partially excluded, i.e. 1/6 or 1/3

1. As primary hair mother gets 1/6 if:

·                 Child, or

·                 Son’s Son (however low in hierarchy), or

·                 Son’s Daughter (however low in hierarchy)

·                 Two or more full/half siblings

2.As primary hair mother gets 1/3 if:

·                 No Child, or

·                 No Son’s Son (however low in hierarchy), or

·                 No Son’s Daughter (however low in hierarchy

·                 Less than two full/half siblings

Exception:

1.               If mother inherit with father or spouse or both, then she either gets 1/4 or 1/6. See Father‟s section where we defined this exception.

2.               Mother can totally exclude other potential heirs when he is present at inheritance, these include:

a. True Grandmothers (however high in hierarchy) – Mother’s Mother.

B. Grandparents:

a) Real Grandmother (Paternal/Maternal Grandmother)

1. Grandmother’s share is identified in Sunnah:

Narrated Buraydah, Allah’s Prophet (pbuh) appointed 1/6 to grandmother if no mother was left to inherit before her [Sunnan Abu Dawood, also similar is reported by Ibn Abbas in Sunnan Ibn Majah]47

2. Real Grandmother are mother of father (however high in hierarchy), i.e. Paternal Grandmother. Also Mother of Mother is considered as Real Grandmother, i.e. Maternal Grandmother.

3. Grandmother may be totally excluded:

a. if mother is alive. Similarly, Great grandmother is totally excluded if grandmother is alive, and so on.

4. Grandmother gets 1/6, if there is no mother

5. Paternal Grandmother gets 1/6, if there is no mother, and  if there is  no father (onlyHanafi/Maliki/Shafii)

6.If there are more than one real Grandmothers then they all share in 1/6

 b) Real Grandfather (Paternal Grandfather)

1. Shares of Grandfather or Great grandfather (or higher) are like father.

2. Real Grandfathers are father of father (however high in hierarchy), i.e. Paternal Grandfathers. Father of Mother is considered as false Grandfather.

3. Only Read Grandfathers are considered as Ashab-ul-Furud. The False grandfathers are considered as Dhawul-Arham - Distand Kindred by Hanafis, Shafaiis, Hanbalis.

4. Grandfather may be totally excluded:

a. if father is alive. Similarly, Great grandfather is totally excluded if grandfather is alive, and so on.

5. Grandfather will get father’s share, if:

a. If father is not alive, but deceased has son or son‟s son then Grandfather will get father’s share, i.e. 1/6

6. Grandfather will get higher shared, if:

a. If father is not alive and deceased do not have son or son‟s son, but deceased has daughter or son‟s daughter, then Grandfather will get father‟s share 1/6 as Dhul-Fard and will also get remaining Residue (whatever is left from Dhul-Furud)

b. If father is not alive and deceased do not have child (either son or daughter), neither deceased has grandchild (son‟s son and sons‟s daughter however low in hierarchy), then grandfather will become a

residuary and will get remainder of shares after distributing the shares of Dhul-Furud (obligatory primary sharers)

7. Grandfather can totally exclude other potential heirs when he is present at inheritance, these include:

a. Great Grandfathers (however high in hierarchy)

b. Siblings, Descendants of father, i.e. Brothers/Sisters or Uterine Brothers/Sisters. There was difference of opinion amongst companions on Grandfather excluding Siblings.

c. Paternal Uncles and their offspring, Descendants of Grandfather.

C. Spouse:

a) Husband

Husband’s share is clearly identified in Quran:

” In that which your wives leave, your share is a half if they have no child; but if they leave a child, you get a fourth of that which they leave after payment of legacies that they may have bequeathed or debts….(4:12)

 Husband is primary heir and he always gets a fixed inheritance share (expect any legal impediment blocks him). However, his share can be partially excluded in certain situation, i.e. 1/4 from 1/2

1.As primary heir Husband gets 1/2, if there is:

·                 No Child, and

·                 No Son’s Son (however low in hierarchy), and

·                 No Son’s Daughter (however low in hierarchy)

2.               As primary heir Husband gets 1/4, if there is:

·                 Child or

·                 Son’s Son (however low in hierarchy), or

·                 Son’s Daughter (however low in hierarchy)

 b) Wife (ves) / Widow(s)

 Quran identified wife’s (or widow) share as:

 “In that which you leave, their (your wives) share is a fourth if you leave no child; but if you leave a child, they get an eighth of that which you leave after payment of legacies that you may have bequeathed or debts. (4:12)

 Wife is primary heir and he always gets a fixed inheritance share (expect any legal impediment blocks him). However, her share can be partially excluded, i.e. 1/8 from 1/4.

1. As primary heir Wife gets 1/4, if there is :

·       No Child

·       No Son’s Son (however low in hierarchy).

·       No Son’s Daughter (however low in hierarchy)

2.As primary heir Wife gets 1/8, if there is a:

·       Child

·       Son’s Son (however low in hierarchy).

·       Son’s Daughter (however low in hierarchy).

3. If there is more than one wife (widows), then they all share in allotted entitlement (1/8 or 1/4).

D. Siblings:

 Brother and Sisters

Brother and Sister’s share is clearly identified in Quran:

 “ They ask you for a legal verdict. Say: "Allah directs (thus) about AlKalalah (those who leave neither descendants nor ascendants as heirs). If it is a man that dies, leaving a sister, but no child, she shall have half the inheritance. If (such a deceased was) a woman, who left no child, her brother takes her inheritance. If there are two sisters, they shall have two-thirds of the inheritance; if there are brothers and sisters, the male will have twice the share of the female. (Thus) does Allah makes clear to you (His Law) lest you go astray. And Allah is the All-Knower of everything."( 4:176)

a) Full sister

a. Full sister is whose father and mother are same as the deceased‟s.

b. Full sister inherits either as Ashab-ul-Furd or as Asabah (Residuary), if she is entitled.

1.Full Sister gets No share, if deceased has:

·                  Father, or

·                  Son, or

·                  Son’s Son (however low in the hierarchy)

·                  Real Grandfather (however high in the hierarchy) – hanafi only, or

·                 Full brother.

2. Full Sister shares as Primary Heir, if deceased is:

·                  Is Kalala (i.e. no one from list in first column)

·                 No Full Brother

·                 No Daughter

·                 No Son’s Daughter (however low in hierarchy)

 If there is only One Full Sister she gets 1/2, if there are more than one full sisters then they share 2/3 jointly

3. Full Sister shares as Residuary as Al-Asbah bighayriha – Because of Others, if deceased :

·                 Has Full Brother, and

·                 Is Kalala (i.e. no one from list in first list)

When there is full Brother, Full Sister(s) will share as Residuary and will gets half of full brother‟s share.

4. Full Sister shares as Residuary as Al-Asbah ma’a ghayriha– Asabah together with others, if deceased:

·                Has Daughter or Has Son’s Daughter (however low in hierarchy)

·                Is Kalala (i.e. no one from list in first list)

5. Full Brother (s) and Full Sister (s) are excluded :

a. If deceased has Father, Son, Son's Son (however low in hierarchy

b. If deceased has Father or Real Grandfather (however high in hierarchy). According to Hanafi, real grandfather excludes Full Brother(s) and Full Sister(s).

6. Full Sister (s) totally exclude  following,

a. Half-Sister (on father’s side)

b. Half Brother (on father’s side), if Full sister is Residuary as Al-Asbah ma‟a ghayriha ie. When there is Full Sister and Son’s Daughter then Half-Brother is excluded.

b) Half-sister(s) on Father's Side (Consanguine Sister)

1.Half sister (on father’s side) shares as Primary Heir, if there is:

·                 No one from above list(of Excluders)   

·                 No Half Brother (from father’s side)

·                 No Full Sister(s)

·                 No Daughter

·                 No Son’s Daughter (however low in hierarchy)

3. If there is only One Half Sister she gets 1/2, if there are more than one Half Sisters then they share 2/3 jointly.

2.Half sister (on father’s side) shares as Residuary, if deceased has:

·                 No one from first list (of Excluders)

·                 No Half Brother (from father’s side) But

·                 Has Full Sister (s)

When full sister is present, Half Sister (one or more) gets only 1/6 jointly and Full Sister gets 1/2 (making it 2/3) Half Sister gets nothing, if there is more than one full sister.

2.Half Sister shares as Residuary as Al-Asbah bighayriha – Because of Others, if deceased:

·                 Has No one from first list (of Excluders)

·                 Has Half Brother (from father’s side)

 Half-Brother convert Half-Sister into Residuary. Due to Half-Brother, Half-Sister gets half of Half-Brother‟s share. If there are more than one Half-Brother and Half-Sisters, they all share in 1/3 jointly

3.Half Sister shares as Residuary as Al-Asbah ma’a ghayriha – Asabah together with others, if deceased

·                 Has No one from first list (of Excluders)

·                 Has No Full Sister(s)

·                 Has Daughter or Has Son‟s Daughter (however low in hierarchy).

4. Half Brother (s) and Half Sister (s) on father‟s side are excluded if :

a.  deceased has Father, Son, Son‟s Son (however low in hierarchy

b.  deceased has Father or Real Grandfather (however high in hierarchy).

c.  deceased has Full Brother (s) and Full Sister (s)

d. deceased has two Full Sisters

5. Exception:

if deceased has no Full Brother, but has One Full Sister, and all the above conditions, then Half-Sister (s) gets 1/6

b)                Full Brother – Residuary

a) Full brother is whose father and mother are same as the deceased‟s.. Full Brother inherits either as Asabah (Priority 3 Residuary), if he is entitled.

b) Full Brother share‟s is identified in Quran when deceased is Kalala.

1.Full Brother gets No share, if deceased has:

·                 Has Father, or

·                 Has Son, or

·                 Has Son’s Son (how ever low in the hierarchy)

·                 Has Real Grandfather (however high in the hierarchy) – hanafi only

2.Full Brother shares as residuary, if deceased

·              Is Kalala (i.e. no one from list in first list)

After distributing shares of all Primary Heirs, Residue will go to Brother. If there are Full Sisters, then Full Brother will get twice as much of sisters.

3. Full Brother (s) totally exclude following,

a. Half-Brother & Half Sister (on father‟s side) and their children

b. Full Brother‟s Son (however low in hierarchy)

c. All Uncles and their offsprings

d)  Half-brother (s) on Father's Side (Consanguine Brother)

1. Half brother (on father’s side) is one whose father is same as the deceased‟s, but mother is different.

2. Half brother (on father’s side) inherits either as Asabah (Priority 3 Residuary), if he is entitled.

3. Half brother (on father’s side) inherits when there is no Full Brother, and then he inherits in position of Full Brother.

4. Half brother (on father’s side) is excluded if both Full Sister and Son‟s Daughter is present

e) Uterine Brother and Sister

1. Uterine Brother and Sister are those who mother is same as the deceased‟s, but father is different

2. Quran Defines share of Uterine Brother (s) and Sister (s)

” … If the man or woman whose inheritance is in question has left neither ascendants nor 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 lagacies he (or she) may have bequeathed or debts, so that no loss is caused (to anyone). This is a Commandment from Allah; and Allah is Ever AllKnowing, MostForbearing…(4.12 )

3. Uterine Brother (s) and Sister gets the share if the deceased was Kalala .

Kalala

1. Kalala  is either man or woman who does not have descendants or ascendants, i.e. neither they have sons or daughters, nor do they have father or grandfathers.

2. Inheritance from Kalala is defined in Chapter 4 An-Nisa (The Woman) verse 4:12 and 4:176

3. The verse 4:176 states Shares of Full Brother and Full Sister,if deceased is Kalala

4. The verse 4:12 state Shares of Half-Brother and Half-Sister (Uterine Brother/Sister), if deceased is Kalala.

 f) Half-sister(s) on Mother's Side (Uterine Sister)

a. Half sister (on Mother‟s side) is one whose mother is same as the deceased‟s, but father is different. It‟s also called Step Sister.

b. Half sister (on Mother’s side) inherits as Ashab-ul-Furd, if she is entitled.

c. General rule of male inherits twice as female doesn‟t apply to Half sister (on Mother‟s side)

d. Half sister’s (on Mother’s side) share are following:

1.Half sister (on mother’s side) gets No share, if deceased has:

·              Has Father, or

·              Has Child (son or daughter), or

·              Has Son’s Child (son/daughter, how ever low in the hierarchy), or

·              Has Real Grandfather (however high in the hierarchy) – hanafi only.

(decease is not Kalala)

2.Half sister (on mother’s side) shares as Primary Heir, if there Is Kalala (i.e. no one from the above list)

 If there is only One Half Sister (on mother‟s side) she gets 1/6, if there are more than one Half Sisters or Half Brothers (on mother‟s side) then they share 1/3 jointly.

3. Half Brother (s) and Half Sister (s) on mother’s side are excluded if deceased has,

a. If deceased has Father, Son, Son’s Son (however low in hierarchy

b. If deceased has Father or Real Grandfather (however high in hierarchy).

g)  Half-Brother on mother’s side (Uterine Brother)

1. Uterine Brother has the same mother but different fathers. Its also called Step Brother.

2. Uterine Brother inherits as Ashab-ul-Furd, if he is entitled.

3. Uterine Brother share‟s is identified in Quran when deceased is Kalala.

4. General rule of male inherits twice as female doesn‟t apply to Half sister (on Mother‟s side)

5. Uterine Brother share as Ashab-ul-Furd, while Full Brother and Half Brother (on father‟s side) share as Asabah (Priority 3 Residuaries)

6. Half sister’s (on Mother’s side) share are given below

a.Half sister (on mother’s side) gets No share, if deceased has:

·                   Has Father, or

·                   Has Child (son or daughter), or

·                   Has Son‟s Child (son/daughter, how ever low in the hierarchy), or

·                   Has Real Grandfather (however high in the hierarchy) – hanafi only. (i.e. decease is not Kalala)

b.Half Brother (on mother’s side) shares as Primary Heir, if there kalala (i.e. no one from list above)

If there is only One Half Brother (on mother‟s side) he gets 1/6, if there are more than one Half Sisters or Half Brothers ((on mother’s side) then they share 1/3 jointly.

7. Half Brother (s) and Half Sister (s) on mother‟s side are excluded if deceased has,

a. If deceased has Father, Son, Son‟s Son (however low in hierarchy

b. If deceased has Father or Real Grandfather (however high in hierarchy).

E. Children:

A) Daughter(s)

1. Daughter’s share is clearly identified in Quran:

4:11 Allah commands you as regards your childrens (inheritance); to the male, a portion equal to that of two females; if (there are) only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is half. 52

2. Only the legitimate daughter is considered as primary heir.

3. Daughter is a primary heir and she always gets a share in inheritance (expect any legal impediment blocks him). They inherit as a primary heir with fixed share or as a residuary.

4. Adopted child, foster child etc are all excluded from Mirath (inheritance) in Shariah.

5. Adultery and fornication (Zina) is forbidden in Islam, hence, no inheritance is given to illegitimate child.

6. Daughter can share in 3 ways:

a. 1/2 As Primary Heir: if she is only daughter and there is no son.

b. 2/3 As Primary Heir: if deceased has more than one daughter then they share 2/3

c. As Residuary - Al-Asbah bighayriha : if deceased has both son(s) and daughter(s), then daughter becomes Al-Asbah bighayriha  and their share is half of son  i.e. male:female ratio is 2:1.

7. Whole estate: if she is the sole heir she gets the whole estate (hanafi/shafii fiqh)

Based on hanafi/shafii fiqh she gets 1/2 as primary heir and 1/2 as Al-Radd.

8. Daughter’s share  is following: 

a.               As primary hier Daughter gets 1/2, if there is no Sons

b.               Daughters jointly share 2/3, if there is no child, and two or more daughters

c.                The maximum joint share for daughter(s) and son‟s daughter(s) (however low in hierarchy) is 2/3.

d.               Daughter(s) becomes residuary when there is a Son, The ratio in this situation is 2:1 [male 2: female 1]

9. Daughter can totally exclude other potential heirs when he is present at inheritance, these include:

a. Two or more daughters can exclude Son’s Daughter (however low in hierarchy), except if Son‟s son is also present.

b)  Son's Daughter(s)

1. Granddaughter (s) (Son’s Daughter) shares as Ashab-ul-Furud when there is no Daughter of the deceased. Then they share in the place of Daughter (s).

2. If Son is present, then Granddaughter is excluded.

3. Granddaughter (Son’s Daughter) inherits either as Ashab-ul-Furd or as Asabah (Residuary), if she is entitled.

4. Granddaughter (Son’s Daughter) share are as following:

a.               Grand Daughter gets no share, if deceased has Sons or has two or more daughters

b.               If there is No Daughter, then If there is only one Grand Daughter (son’s daughter) she gets 1/2, if there are more than one Grand Daughters then they share 2/3 jointly.

c.                If there is One Daughter and Grand Daughters, then max share for all of them is 2/3, where Grand Daughters get fixed share of 1/6

d.               If there is two or more daughters, then Granddaughters are excluded

5. Granddaughter (Son‟s Daughter) are excluded if deceased has,

a. If deceased Son

b. If deceased has two or more daughters

 c) Son(s) - Residuary

1. Please note that Son is not part of Ashab-ul-Furud.

2. However, He always gets a share in inheritance (expect any legal impediment blocks him). He gets his share as a Residuary as he is not mentioned in Quran with any fixed share.

3. Quran did not explicitly spell out the share of the son. Hence, he is primary heir without a fixed share.

4:11 Allah commands you as regards your childrens (inheritance); to the male, a portion equal to that of two females; if (there are) only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is half. 53

Hence, Son minimum share is twice as much as daughters‟. And he also gets remainder of residue after distributing shares to Ashab-ul-Furud.

4. Only the legitimate son is considered as primary heir.

5. Adopted child, foster child etc are all excluded from Mirath (inheritance) in Shariah.

6. Adultery and fornication (Zina) is forbidden in Islam, hence, no inheritance is given to illegitimate child.

7. Son always gets his share as a Residuary. After all the primary heirs with fixed share have been given their allotted share, then the residue is given to the son.

8. If there is a daughter, then son and daughter both shares as Residuaries.

9. General rule that Male gets twice as female applies. If there is daughter, son gets twice as much share as daughter.

10. If son is the sole heir, then he takes the whole state.

11. Son can totally exclude other potential heirs when he is present at inheritance, these include:

a. All grandchildren (however low in hierarchy)

b. All siblings and their descendants (however low in hierarchy)

c. All uncles and their descendants (however low in hierarchy)

6.2. AL-ASABAT

Residuaries (Secondary Heirs)

The Prophet (pbuh) said: Give fara‟id 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] Asabat ( means “residuaries”, they are of two categories:

1. Asabat Nasbiyyah : Blood relation

2. Asabat Sababiyyah : Special cause

A. Al-Asabat Nasabiyyah – Blood Relative:

1. In Shariah, Asabat Nasbiyyah consists of all male agnates and four specified female agnates.

2. Male Residuaries: Agnate relatives of the deceased are those between whom and the deceased no female intervenes. All residuaries are related to the deceased through male.

3. Female Residuaries: four females are also included that are all connected through a male agnate, i.e., Daughter, Daughter of Son (however low), full sister, consanguine sister.

4. Asabat Nasabiyyah is divided into three:

a. Al-Asbah binafsihi

b. Al-Asbah bighayriha

c. Al-Asbah ma‟a ghayriha

Shares of Al-Asabat Nasabiyyah

Rules of inheritance amongst the residuaries:

1. Rule # 1: Residuaries inherits whatever remains (the residue) of the estate after the fixed sharers (or Primary Heirs) have been allotted their share.

2. Rule # 2: If there is No Primary Heir or if there is No Residuaries ...

a. If there is no “Primary Heir” then “Residuaries” takes the whole estate

b. If there is no “Residuaries” then the “Primary Heir” takes the residue (Doctrine of ar-Radd)

3. Rule # 3: Basic principle in distributing shares amongst Al-Asabat, that the nearest to the deceased gets the remainder of the share after paying the share of Dhul-Farood . Hence, they are graded into four ranks that define their priority sequence. Higher priority is given to first group, if they don‟t exists, then the next group and then the next

4. Rule # 4: Nearer in degree exclude the more remote within the limits of each class of heirs.

 The nearer in relation gets priority over father in relation. E.g. between son and grandson (son‟s son), son is closer in relation. Hence son will take the entire share and grandson will get nothing (either if he is grandson from same son, or from other sons).

a. Amongst collaterals, the strength of blood line determines priority. Full blood takes preference over half-blood through father. E.g. Full sister takes preference over consanguine brother/sister.

b. If there are many sharers in same level and are equally close, then all of them will get equal share.

c. Real brother will supersede half-brother, and real-uncle will supersede half-uncle.

5. Rule # 5: Whoever is related to the deceased through another person will not inherit while that person is alive. E.g. if father is alive, brother and sister are totally excluded

6. Rule # 6: Descendants take priority over ascendants who take priority over collaterals.

a. Exception: Father cannot be excluded by son

b. Exception: All collaterals are excluded by father or true grandfather (e.g. father exclude brother/sisters, True grandfather exclude uncles etc) – Hanafi View based on Abu Bakr, Aisha (Ra).

Malki, Shafaai, Hanbli, Imam Abu Yusuf and Imam Mohammad (abu hanifa students) view based on Ali, Azir bin Thabit, Abdullah bin Masood is the full siblings and consanguine siblings are not excluded by the paternal grandfather (this is majority view).

7. Rule # 5: General Rule of male:female ratio: one male inherits equivalent of two portions of female (man:female ratio 2:1) of same level or below.

Group 1 for Residue: Descendants of the deceased: These include four (descendants): 1. Sons 2. Son‟s son (however low in the chain) 3. Daughter when accompanied by son 4. Son‟s daughter (however low in chain)  when accompanied by son‟s son of an  equal or lower degree	Group 2 for Residue:  Ascendants of the deceased: These include two (ascendants): 1. Father 2. True grandfather (however high in chain)
Group 3 for Residue: Descendants of the father: These include six (siblings): 1. Full Brother 2. Consanguine brother 3. Full sister when she is not Primary Heir 4. Consanguine sister when she is not Primary Heir 5. Full brother‟s son (however low in chain) 6. Consanguine brother‟s son (however low in chain)	Group 4 for Residue: Descendants of the grandfather: These include two groups (uncles and their descendants): 1. Offspring of true grandfather (father‟s father) a. Paternal uncle  b. Male descendants of paternal uncle 2. Offspring of true great grandfather (father‟s father‟s father) a. Great paternal uncle b. Male descendants of great paternal uncle

B. Al-Asabat Sababiyyah

Asabat Sababiyyah are following:

·                  By special reason (e.g. Mauwla al-itaq)

·                 By contract (Mawlaul-Mawala)

·                 Distant kindred (dhawal-arham)

·                 Acknowledged kinsman (Al-Muqirr Lahu)

·                 Universal Legatee/tesatee (Al-Musa Lahu)

·                 Public treasury

a) Dhawul-Arham - Distant kindred

·                  It means “possessors of kinship”. This also referred to as uterine heirs.

·                  These are all blood relatives of the deceased who are neither Primary Heirs (Ashabul-Furud) nor Residuaries (al-Asabat).

·                  All issues through female relatives are distant kindred except those through the mother

b) Mauwla al-itaq- By special reason

1. Mauwla al-itaq  is master of a freed-Slave.

2. If freed-slave (manumitted slave) died and left no heirs by blood relation, then manumitter (master who freed the slave) is entitled to the residue.

( This may not be relevant to modern times, as it deals with slave and master. Since slavery is no longer practice, this topic may not be relevant.)

c) Mawla-ul-Mawala - Successor by contract

1. If there no Dhawul-Arham - Distant kindred, then state can be given to Mawla-ul-Mawala

(successor by contract), if any.

2. The deceased must have made prior contract with Mawla and he/she must accept it.

a. There should be declaration (by deceased) and acceptance (By Mawla)

b. The person who make the declaration must not have no other legal heir (or blood relatives)

( Such situation is unlikely to happen in modern times.)

General rules:

a. Male/female ration is 2:1

b. Nearer in degree excludes more remote

c. If claimants are of equal degree then descendants of the Primary Heirs or Residuaries take preference over descendants of distant kindred.

d. If claimants are of equal degree we use rule of Imam Abu Yusuf and divide equally amongst the claimant keep the male:female ratio.

d) Al-Muqirr Lahu- Acknowledged kinsman

1. If there is no heirs and no Mawla-ul-Mawala  (successor by contract), then shares estate can be given to Al-Muqirr Lahu - Acknowledged kinsman.

2. Al-Muqirr Lahu  is person of unknown descend but whose kinship has been acknowledged by the deceased person.

3. Al-Muqirr Lahu  inherits as residuary.

e) Al-Musa Lahu - Universal Legatee/tesatee

1. Al-Musa Lahu is person whom the deceased has Willed/bequeathed the estate/property when there is no other heir.

2. The rules of max 1/3 (by will) do not apply as there is no other heir. Al-Musa Lahu take whole estate.

f) Public treasury

1. If there is none of above claimant, then estate/property of deceased is entered in to Public treasury .

7. Summary

Inheritance in an integral part of Islamic Shariah Law and its application in Islamic society is a mandatory aspect of Devine teaching of Islam. Hence, there is a legal share for relatives of the deceased in his estate/property. When a person dies there are four rights that needs to be performed his property:

1.               Pay his/her funeral and burial expenses

2.               Pay his/her debts

3.               Execute his/her Will/bequest if the deceased left a Will. Will must not exceed 1/3 of his/her total estate/property.

4.               Distribute remainder of his/her estate/property according to Islamic Shariah Law amongst the legal heirs or claimants.

In order to distribute the inheritance, follow these steps:

1.               Identify all legal heirs or claimants.

2.               Eliminate those who are excluded due to impediment or disqualified. See Section “Impediments to Inheritance:”

3.               Divide the claimants into four groups:

1.                    Primary Heirs

2.                    Secondary Heirs

3.                    Distant Kindred

4.                    Public treasury

 Sequence:

1.               First distribute the shares amongst Ashab-ul-Farood, and if there is residue, it goes to Secondary Heirs.

2.               If there are no Secondary heirs, then distribute the residue amongst Distant Kindred.

3.               If there are no distant kindred or still some residue left, then it goes to Bait-ul-Maal.1/3)

8.           Bibliography

1.Dr A Hussain. The Islamic Law of Succession Darussalam Publishers & Distributors. June 2005

2.Syed Shawkat Ali. Meraas (urdu) Islamic Publications, 1999

3.Yusuf Ziya Kavakci. Islamic Inheritance Law. Dallas, TX: Al-Huda Publications, 1994

Wibsite

4.English Translations, (Sahih Bukari, Sahih Muslim)

http://www.usc.edu/dept/MSA/fundamentals/hadithsunnah/(10 may 2011)

5.Inheritance according to Islamic Sharia Law ( An Islamic Inheritance Calculation Program)

http://www.muslimpersonallaw.co.za/Inheritance%20according%20to%20Islamic%20Sharia%20Law.pdf (10 May 2011)

6. Islamic Laws. www.al-islam.org/laws/(10 May 2011)

7 .Muhammad al-Jibaly. The Final Bequest - The Islamic Will & Testament

http://www.kalamullah.com/islamic-will.htm ( 11 May 2011)

8.Mohammad Razi. Islamic Inheritance Law(General Rules & Shares)  Sep-2008,

          http://learndeen.com/docs/research/InheritanceLaw_0_4.pdf  (11 May 2011).