CHAPTER 3: TEXTS CONCERNING INHERITANCE
CHAPTER 3: TEXTS CONCERNING INHERITANCE
In this chapter, we present texts from the Quran and authentic Sunnah regarding inheritance in Islam. We accompany the texts with brief explanations as we find necessary. These texts largely provide the bases for the rules of inheritance, which will be summarised in the next chapter.
The Estate Goes to the Legal Heirs
The estate of a deceased goes to the heirs that have been legally indicated in the Islamic law. The Islamic state has no right to any part of it, except in the rare situation where the deceased was not survived by any relatives — close or far. Allah (swt) says:
«For men is a share of what the parents and close relatives leave, and for women is a share of what the parents and close relatives leave, be it little or much — an ordained share (by Allah).» (An-Nisa 4:7)
Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
<As in Allah’s Book(Al-Ahzab 33:6.), I have more right to the believers (than anyone else). Whoever dies leaving a debt or dependents, call me because I am their sponsor. And whoever leaves wealth, it is for those who are his nearest of kin.>(Recorded by Muslim.)
Similarly, Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
<1 have more right to the believers than themselves. Whoever dies leaving debt, it is upon me to pay it off; and whoever leaves a wealth, it is for his heirs.> (Recorded by al-Bukhari, Muslim, and others)
And Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
<There is no believer but I have the most right to him in this world and the hereafter. Read if you wish:
«The Prophet has more right to the believers than themselves.» (Al-Ahzab 33:6.)
Thus, any believer who dies leaving wealth, let those who are his nearest of kin inherit him. and whoever dies leaving a debt or dependents, let them come to me, because I am their sponsors > (Recorded by al-Bukhari)
And Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
<By the One in Whose hand is Muhammad’s soul, there is no believer on the surface of the earth but I have more right to him than anyone else. Thus, whoever among you leaves a debt or dependents, I am their sponsor. And whoever leaves wealth, it is for those who are his nearest of kin.> (Recorded by Muslim)
Jabir reported that Allah’s Messenger (pbuh) said:
<I have more right to every believer than himself. Whoever leaves a debt, it is my responsibility; and whoever leaves wealth, it is for his heirs.> (Recorded by Ahmad, Abu Dawud, and an-Nasa’i. Verified to be authentic by al- AlbanI (Irwa’ ul-Ghalil no. 1416).)
From the above reports (and similar ones that will follow in the discussion of the maternal uncle), we conclude the following:
1. The Islamic state, represented in these hadiths by the Prophet (pbuh), is responsible for every individual of its citizenship.
2. The Islamic state guarantees paying off the debts of a deceased whose estate is not enough for that.
3. The Islamic state is responsible for the children and other dependents of a deceased whose estate is not enough to support them.
4. A deceased’s inheritance goes to his legal heirs, and the Islamic state has no share in it.
5. Only in the absence of legal heirs does the Islamic state take the inheritance.
Abrogated Practises
INCLUDING WOMEN IN THE ESTATE
Women are not part of the estate to be inherited by the heirs. That was a practice of Jahiliyyah that Islam abrogated. Ibn ‘Abbas reported that a male heir used to inherit the wife of a deceased relative and force her to stay within her house or give up her mahr (dowry) (Recorded by al-Bukhari and others.). So Allah (swt) prohibited this in what follows:
<<O you who believe, it is not lawful for you to inherit women by compulsion.>> (An-Nisa 4:19.)
HEIRS BY OATH
A Muslim’s legal heirs are his close relatives specified in the Quran and Sunnah. One may not add to them by an oath. During Jahiliyyah and the early period of Islam, the Muslims used to appoint some nonrelatives as their legal heirs (as in the case of the brotherhood instituted between the Muhajiriin and the Ansar). Allah (swt) abrogated this and told them that they may only bequeath some of their property to them:
«And for all, We have made heirs to what is left by parents and relatives. And to those to whom your oaths have bound you: give them their share (as a bequeathal). Indeed, Allah is a witness over all things.» (An-Nisa 4:33.)
Specified Shares
CHILDREN AND PARENTS
Allah (swt) has decreed the shares of a deceased’s offspring and parents in the following ayah:
«Allah instructs you concerning your children’s (inheritance): a male receives a share equal to that of two females. But if they (the children) are only women, and are more than (or equal to) two, their share is two thirds of that which he (the deceased) had left. And if there is only one woman, her share is half (of the estate). And for his parents, each one’s share is a sixth of that which he left if he had children. But if he had no children, and the parents inherit from him, the mother’s share is one third. And if he had siblings, the mother’s share is a sixth. (These distributions should be done) after the payment of any bequeathals that he may have made or debts (that he may have had). Your parents and offspring — you do not know which among them are nearest to you in benefit. (These shares are) an ordainment imposed by Allah. Indeed, Allah is Knowing and Wise.» (An-Nisa 4:11.)
The ‘ulama derive many important instructions from this ayah, the most relevant of which to our discussion are the following:
1. The debts and bequeathals are taken out of the estate before dividing the rest among the heirs.
2. A deceased’s offspring share in his estate, a son receiving twice as much as a daughter. This is done after taking out any ordained shares.
3. The grandchildren take the position of the children in their absence.
4. If the deceased’s offspring are only females (two or more), they receive two-thirds of the estate, which is then equally divided among them.
5. If the deceased is survived by only one daughter, she receives one- half of the estate. If, in addition, there are granddaughters, they share one-sixth, bringing the total for the daughters to two-thirds (as in the previous point). This is further supported by Ibn Masud’s explicit hadith in this regard (see below).
6. In the presence of children, the parents receive one-sixth each.
7. In the absence of children, if the deceased leaves brothers or sisters — full, paternal, or maternal, then the mother receives one-sixth. The father’s share in this case is determined differently (discussed later).
8. In the absence of children and siblings, the mother receives one- third. This “one-third” does not apply to the whole estate, but only to the remaining part of it after taking out any prescribed shares. This is the opinion of ‘Umar, Zayd Bin Thabit, and others among the sahabah, as well as the majority of the ‘ulama after them — as will be discussed in the next chapter.
SPOUSES AND MATERNAL SIBLINGS
The following ayah deals with the share in the inheritance of the spouses and maternal siblings:
«You receive one half of that which your wives leave if they have no child. If they have a child, you receive one fourth of what they leave — after payment of any bequeathals that they had made or debts (that they had). And they receive one fourth of that which you leave if you have no child. If you have a child, they receive one eighth of what you leave — after payment of any bequeathals that you had made or debts (that you had). If the man or woman whose inheritance is in question has neither ascendents nor descendents, but has a (maternal) brother or sister, each one of them two receives a sixth; and if they were more than two, they share a third — after payment of any bequeathals that had been made or debts (that are owed), and that are not intended to cause harm (to the legal inheritors). This is a commandment from Allah; and Allah is ever Knowing and Tolerant.» (An-Nisa 4:12.)
Among the instructions that we derive from this ayah are the following:
1. A husband receives one-half of his wife’s estate if she does not have any offspring — from him or other men, immediate or grandchildren. Otherwise, he receives one-fourth.
2. A wife is a woman who was married to the deceased when he died, or that was divorced by him a non-final (third) time and had not completed her ‘iddah (waiting period). If there are more than one wife (maximum four) for a deceased, their share is divided equally among them.
3. The wives receive one-fourth of their husband’s estate if he does not have any offspring — from them or other women, immediate or grandchildren. Otherwise, they receive one-eighth.
4. There is a consensus among the ‘ulama that the brothers and sisters mentioned in this ayah are the maternal siblings, because the shares of the other siblings are mentioned in the ayah at the end of Surat an-Nisa (4:176).
5. The shares of males and females of the same rank (brother and sisters, uncles and aunts, sons and daughters, etc.) are such that a male receives twice as much as a female.
6. The maternal siblings are the only exception to the above rule. If there is only one maternal sibling, he (or she) receives one-sixth. If there are two or more, they share one-third.
FULL AND PATERNAL SIBLINGS
When a deceased does not have branch (offspring and below) or origin (fathers and above) heirs, his inheritance is called kalalah, which means “borders or margins”. It is thus named because the only possible heirs for such a person are his margin relatives — instead of the origin and branch heirs.
The kalalah case for a deceased who is only survived by maternal siblings has been dealt with in the previous ayah (an-Nisa 4:12). The following ayah deals with the kalalah for one who is survived by paternal or full siblings:
«They ask you for a legal ruling. Say, “Allah gives you a ruling concerning kalalah (leaving neither descendents nor ascendents). If it is a man that dies leaving no child but only a sister, she receives half of what (estate) he left. And he inherits her (completely) if she (dies first and) has no child. But if they are two sisters, they receive two-thirds of what he left. And if they are both brothers and sisters, a male receives the share of two females. Thus does Allah make clear to you (His laws) lest you go astray. Allah is All-Knower of all things.» (An-Nisa 4:176.)
This ayah indicates that if a deceased leaves only paternal or full siblings, it will be one of the following cases:
1. If there is only one sister, she receives half of the estate.
2. If there are two or more sisters, two-thirds of the estate is divided equally among them.
3. If there is only one brother, he receives all of the estate.
4. If there are mixed brothers and sisters, the whole estate is divided among them, giving a male twice as much as a female. (Among the explanations given by the scholars regarding this male/female ratio is that a male is usually responsible for the financial support of the household, and needs a larger share for that purpose, whereas a female’s share is mostly saved or invested for her personal benefit.)
DAUGHTER, GRAND-DAUGHTER, AND SISTER
‘Abdullah Bin Mas’ud was once asked in regard to the inheritance of a daughter, granddaughter, and sister (surviving a deceased). He said, “My judgement in this case is that of Allah’s Messenger (pbuh):
<The daughter’s share is one-half, that of the son’s daughter is one-sixth, and whatever remains is for the sister.>” (Recorded by al-Bukhari and others.)
NEAREST MALE
After giving the heirs with prescribed shares their portions, anything remaining after that is given to the nearest male to the deceased — or divided among those who are equally near.
Ibn ‘Abbas reported that Allah’s Messenger (pbuh) said:
<Divide the wealth among the heirs with prescribed shares, according to Allah’s Book. Whatever is left after that, (give it) to the nearest male person (to the deceased).> (Recorded by Muslim, Abu Dawud, and Ibn Majah.)
In another report, Ibn ‘Abbas reported that Allah’s Messenger (pbuh) said:
<Give the ordained shares to their rightful heirs. Whatever is left after that, (give it) to the nearest male person (to the deceased).> (Recorded bv al-Bukhari. Muslim and others.)
Non-Standard Heirs
In the absence of standard legal heirs, the inheritance goes to other relatives who are further away from the deceased. If the deceased has absolutely no relatives, the Islamic state takes the entire estate.
MATERNAL UNCLE, AND THE ISLAMIC STATE
The following hadiths indicate that a khal (maternal uncle) becomes an heir for a deceased who has no standard heirs. If that is not an option, the estate goes to the state.
‘Umar reported that Allah’s Messenger (pbuh) said:
<Allah and His Messenger are the guardians of the one who does not have a guardian; and a maternal uncle inherits from the one who does not have any (closer) heirs.> (Recorded by at-Tirmidhi and Ibn Majah. Verified to be authentic by al-Albani (Irwa ’ ul-Ghalil no. 1700).)
Al-Miqdam reported that Allah’s Messenger (pbuh) said:
<1 am the heir of anyone who has no heir. I fulfil his obligations and inherit his wealth. And a maternal uncle is the heir of anyone who has no heir. He fulfils his obligations and inherits his wealths. > (Recorded by Abu Dawud, al-Hakim, and others. Verified to be authentic by al- Albani (Irwa’ ul-Ghalil no. 1700).)
Al-Miqdam also reported that Allah’s Messenger (pbuh) said:
<I have more right to every believer than himself. Whoever leaves a debt or dependents, it is upon me (to take care of them); and whoever leaves wealth, it is for his heirs. I am the guardian of one who has no guardian, I inherit his wealth and fulfil his obligations. And a maternal uncle is a guardian for one who has no guardian. He inherits his wealth and fulfils his obligations.> (Recorded by Abu Dawud and others. Verified to be hasan by al-Albani (Irwa’ ul-Ghalil no. 1700).)
‘A’ishah, Abu ad-Darda, and Abu Hurayrah (i^») reported that Allah’s Messenger (i&) said:
<The maternal uncle inherits from those who have no (standard) heirs.> (Recorded by at-Tirmidhi and others. Verified to be authentic by al-Albani (Irwa’ ul-Ghalil no. 1700 and as-Sahihah no. 1848).)
Abu Karimah reported that Allah’s Messenger (pbuh) said:
<Whoever leaves wealth, it is for his heirs; and whoever leaves dependents, it is upon Allah and His Messenger (to take care of them). I am heir for one who has no heir. I fulfil his obligations and inherit him. And a maternal uncle is heir for one who has no heir. He fulfils his obligations and inherits him.> (Recorded by Ahmad and Ibn Majah. Verified to be hasan by al-Albani (Irwa’ ul- Ghalil no. 1698).)
A SISTER’S SON
Anas reported that once the Prophet (pbuh) summoned the Ansar. When they all came he said, <Is there anyone else beside those who are present?> They replied, “No, except the son of a sister of ours.” He (pbuh) then said:
<The son of a family’s sister is one of them.> (Recorded by al-Bukhari, Muslim, and others.)
This is taken as evidence that, in the absence of relatives who are closer to the deceased, a nephew from the sister’s side may inherit.
Special Individuals
The following are individuals who are dealt with in a special way in matters of inheritance.
THE PROPHET
No portions of the wealth left by the Prophet (pbuh) could be inherited by his relatives after him. What he left became a property of the Islamic state.
Once al-‘Abbas and ‘Ali went to ‘Umar – In his presence, there were Talhah, az-Zubayr, ‘Abd ur-Rahman Bin ‘Awf, and Sa‘d Bin Abi Waqqas – They were arguing, and ‘Umar told them, “Didn’t you know that Allah’s Messenger (pbuh) said:
<All of the Prophet’s wealth is charity, except for that which he feeds or clothes to his family. And we (prophets) cannot be inherited.>?”
They replied, “Yes!” He said, “Allah’s Messenger (pbuh) used to spend of his wealth on his family, and give away the remainder as charity. When he (pbuh) passed away, Abu Bakr was in charge, and he did as Allah’s Messenger (pbuh) used to do.” (Recorded by Abu Dawud, and at-Tirmidhi (in ash-Shama’il). Verified to be hasan by al-Albani (as-Sahihah no. 2038).)
Abu Bakr reported that Allah’s Messenger (pbuh) said:
<Verily, when Allah grants something to a prophet, it goes to the one who becomes in charge after him.> (Recorded by Ibn Majah. Verified to be authentic by al-Albani (lrwa ’ ul-Ghalil no. 1241).)
Huthayfah reported that Allah’s Messenger (pbuh) said:
<A prophet may not be inherited.> (Recorded by Abu Ya’la. Verified to be authentic by al-Albani (Sahih ul-Jami no. 6799).)
Also Abu Bakr reported that Allah’s Messenger (pbuh) said:
<We (prophets) may not be inherited. Whatever we leave is charity. The family of Muhammad may only eat from this wealths> (Recorded by al-Bukhari, Muslim, and others.)
“A’ishah reported that Allah’s Messenger (pbuh) said:
<We (prophets) may not be inherited. Whatever we leave is charity. This wealth can only be used by the family of Muhammad for their needs and guests. When I die, it goes to the one who will be in charge after me.> (Recorded by Abu Dawud. Verified to be hasan by al-Albani (as-Sahihah no. 2038).)
Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
<My offspring may not divide even one dinar (of my inheritance) after me. After my wives’ support, and my representative’s expenses, everything that I leave will be charity.> (Recorded by al-Bukhari, Muslim, and others.)
A FOETUS
When someone passes away, it is possible that one or more of the related women are pregnant, and the children they bear could be heirs after birth. Ex., if the deceased’s wife is pregnant, the child in her womb could be a major heir. The condition for a foetus to inherit is that it is born alive — even for a brief moment.
Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
<As soon as a baby cries (at birth), it inherits.> (Recorded by Abu Dawud and al-Bayhaqi. Verified to be authentic by al-Albani (Irwa ul-Ghalil no. 1707).)
A CHILD OF ZINA
Ibn ‘Umar reported that Allah’s Messenger (pbuh) said:
<Whichever man commits zina with a free or slave woman, the child (that she bears) is a child of zina. It neither inherits (from him) nor gives him inheritance.> (Recorded by at-Tirmidhi. Verified to be authentic by al-Albani (Sahih ul-Jami no. 2723).)
‘A’ishah, Abu Hurayrah, and other sahabah reported that Allah’s Messenger (pbuh) said:
<A child belongs to the mattress (where it was born), and the one who committed adultery receives the stones (as punishment).> (Recorded by al-Bukhan, Muslim, and others.)
‘Abdullah Bin ‘Amr reported that Allah’s Messenger (pbuh) said:
<For an annexed individual, after the death of his father to whom he was attributed, and if the heirs claim him after him, (he has the following cases):
1) If he was from a slave woman whom he (the deceased) owned when he had intercourse with her, he should be annexed to him. But he receives no share of what had already been divided of the inheritance (before his approval). He only receives his share of whatever has not yet been divided (when he is approved).
2) If the father to whom he is attributed denies him, he may not be annexed to him.
3) If he was from a slave woman whom he (the deceased) did not own, or from a free woman with whom he committed zina, then he is a child of zina who should be attributed in either case to his mother’s family. And he may not be annexed (to the deceased), nor may he inherit from him — even if he claimed him to be his.> (Recorded by Ibn Majah. Verified to be hasan by al-Albani (Sahih ul-Jami no. 4549).)
CHILD OF A PREGNANT SLAVE WOMAN
It is not permissible to have intercourse with a pregnant woman who is a captive of war, because that would lead to a confusion in the lineage of the baby, which would reflect on inheritance and other matters.
Abu ad-Darda reported that Allah’s Messenger (pbuh) passed by a pregnant woman (from the captives) standing by a tent’s entrance (after a battle). He exclaimed, <Perhaps he (her master) plans to have intercourse with her?> He was told, “Yes.” He said:
<I was about to curse him a curse that would enter with him into his grave! How could he make it (the baby) an heir when it is not permissible for him (to claim it as his own child)? Or how could he employ him (as a slave) when it is not permissible for him (to enslave him if he was his own child)?> (Recorded by Muslim and others.)
A KILLER
A killer may not inherit anything from the one whom he killed — whether the killing was intended or voluntary.
Abu Hurayrah reported that Allah’s Messenger (pbuh) said:
<A killer does not inherit (from the victim).> (Recorded by at-Tirmidhi and Ibn Majah. Verified to be authentic by al-Albani (Irwa’ ul-Ghalil no. 1671,1672).)
One of the sahabah reported that Allah’s Messenger (pbuh) said:
<A killer does not receive (a share of the) inheritances.> (Recorded by Ibn Majah. Verified to be authentic by al-Albani (Irwa’ ul-Ghalil no. 1671).)
‘Abdullah Bin ‘Amr reported that Allah’s Messenger (pbuh) said:
<A killer does not receive any part (of the inheritance). If he (the victim) has no (standard) heirs, his inheritor will be the nearest (of kin) to him, and the killer does not inherit anything.> (Recorded by Abu Dawud. Verified to be hasan by al-Albani (Irwa’ ul-Ghalil no. 1671).)
In another report, ‘Abdullah Bin ‘Amr said that Allah’s Messenger (pbuh) said:
<A killer does not receive any part of the inheritance.> (Recorded by al-Bayhaqi. Verified to be authentic by al-Albani (1rwa‘ ul-Ghalil no. 1671).)
NON-MUSLIMS
Regardless of how closely related to the deceased they might be, non- Muslims cannot be legal heirs for their Muslim relatives. The only way they may inherit is through a bequeathal that does not exceed one-third of the estate.
Usamah, Jabir, and Ibn ‘Amr reported that Allah’s Messenger (pbuh) said:
<The followers of two different religions may not inherit from each other.> (Recorded by Abu Dawud, an-Nasa’i, and others. Verified to be authentic by al- Albani (Irwa’ ul-Ghalil no. 1675).)
Usamah reported that Allah’s Messenger (pbuh) said:
<A kafir cannot inherit a Muslim, nor a Muslim a kafir.> (Recorded by al-Bukhari, Muslim, and others.)
ADDITIONAL CONSIDERATIONS
In what follows, we include a few additional matters related to inheritance that have no part in the previous sections.
ALLOCATIONS PRIOR TO ISLAM
Allocations made prior to Islam may not be revoked, because revoking them would result in chaos beyond possible control.
Ibn ‘Abbas reported that Allah’s Messenger (pbuh) said:
<Every division (of inheritance) that was made in the Jahiliyyah stays according to the way it was divided. And every division that reached Islam should be made according to Islam.> (Recorded by Abu Dawud and Ibn Majah. Verified to be authentic by al-Albani (Irwa ul-Ghalil no. 1717).)
Ibn ‘Umar reported that Allah’s Messenger (pbuh) said:
<Any inheritance that was divided during Jahiliyyah should remain according to the division of Jahiliyyah . And any inheritance with which Islam has caught up, it should be divided according to Islam.> (Recorded by Ibn Majah. Verified to be authentic by al-Albani (Irwa ’ ul-Ghalil no. 1717).)
NO BEQUEST TO LEGAL HEIRS
As mentioned in the previous chapter, one may not bequeath any part of his estate to legal heirs. The only part that they may receive from the estate is that allotted to them according to the law of inheritance.
Anas and Abu Umamah reported that Allah’s Messenger (pbuh) said:
<Verily, Allah has given to everyone who has a right his due right. Thus, no bequeathal may be made to a (legal) heir.> (Recorded by Ibn Majah. Verified to be authentic by al-Albani (Irwa’ ul-Ghalil no. 1717).)
REGAINING EARLIER CHARITY
There is nothing wrong with an heir regaining the inheritance of a gift or charity that he had previously given to the deceased.
Buraydah reported that a woman came to the Prophet (pbuh) and said, “O Allah’s Messenger! I gave a slave girl as sadaqah to my mother. My mother then died, and the slave girl came back to me with the inheritance!” He said:
<Verily, Allah has rewarded you (for your charity), and has given you back your slave girl as part of the inheritance.>
She continued, “Also, my mother died without performing hajj. May I perform it on her behalf?” He said, <Yes!> She asked, “My mother also had one month’s fasting (that she was not able to fulfil). Does it help her that I fast on her behalf?” He said, <Yes!> (Recorded by Ahmad, Muslim, and others.)
GIVING CHARITY WHILE DIVIDING THE INHERITANCE
If needy and poor people happen to be present at the time of dividing the estate, they should be given out of the property and treated with kindness, as Allah (swt) says:
“And when the relatives and the orphans and the poor attend the division, give them out of it (the property), and speak to them words of kindness and justices.” (An-Nisa 4:8.)
By Muhammad Al-Jibali
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